Bonnie L. Ellis, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionOct 8, 2002
01A14148 (E.E.O.C. Oct. 8, 2002)

01A14148

10-08-2002

Bonnie L. Ellis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.


Bonnie L. Ellis v. United States Postal Service

01A14148

October 8, 2002

.

Bonnie L. Ellis,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Great Lakes Area),

Agency.

Appeal No. 01A14148

Agency Nos. 1J609003899,

1J609004199

Hearing Nos. 210-AO-6142X

210-A0-6195X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission affirms the agency's final order.

The record reveals that complainant, a Full Time Mail Handler, PS-04,

at the agency's Chicago Bulk Mail Center at Forest Park, Illinois

(�facility�), filed a formal EEO complaint on July 14, 1999, alleging

that the agency had discriminated against her on the bases of her sex,

disability (arthritis of knees), and age (D.O.B. February 5, 1955)

when she was subjected to harassment as follows:<1>

(1) On March 14, 1999, her supervisor (S1),<2> knowing that her union

steward (U1) was not available, nevertheless instructed her to attend

a pre-disciplinary inquiry;

On March 15, 1999, she was issued a Letter of Warning (LOW);

On or about March 26, 1999, S1 instructed her to return to her unit

to obtain a pass to the union room and also to return to her unit to

clock for union business;

On March 31, 1999, S1, knowing that U1 was not available, again

instructed her to attend a pre-disciplinary inquiry; and

On April 1, 1999, she was issued a seven-day no time off suspension.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

The AJ found, as to claim (1), that complainant failed to establish

that she has a disability pursuant to the Rehabilitation Act. Assuming

arguendo that complainant established a prima facie case, the AJ found

that the agency articulated a legitimate, nondiscriminatory reason

for its action, namely, that although U1 was unavailable, another

union steward was available on that occasion. The AJ found that

complainant failed to establish by the preponderance of the evidence,

that the agency's action was pretext for discrimination. As to claim

(2), the AJ assumed that complainant established a prima facie case

of discrimination and proceeded to find that the agency articulated

a legitimate, nondiscriminatory reason for its action. Specifically,

complainant was dumping the wrong mail on the conveyor belt, and failed

to follow S1's instructions. When S1 attempted to have a discussion

with complainant, she became uncooperative, out of control and loud.

The AJ found that complainant failed to establish that the agency's

reason was pretextual.

As to claim (3), the AJ found that it is standard procedure for employees

to obtain a pass and to clock their time for union business. The AJ

further found that this action was not adequately severe or pervasive

as to constitute harassment. As to claim (4), the AJ found that the

agency articulated a legitimate, nondiscriminatory reason for its action,

namely, that other union stewards were available on that occasion. The AJ

found that complainant failed to meet her burden of establishing that the

agency's reason was pretextual. As to claim (5), the AJ found that the

agency articulated a legitimate, nondiscriminatory reason for its action,

namely, that the suspension was issued because complainant walked away

while S1 was giving her instructions. According to S1 complainant was

throwing newspapers onto the belt in a haphazard way, and despite having

been instructed to place mail on the belt, complainant began writing

notes. Complainant's conduct delayed other employees' mail processing.

The AJ found that complainant failed to establish that the agency's reason

was pretextual. The agency's final order implemented the AJ's decision.

On appeal, complainant restates arguments previously made at the

hearing, and contends that the AJ erred when he made a finding of

no discrimination. The agency stands on the record and requests that

we affirm its final order. Pursuant to 29 C.F.R. � 1614.405(a), all

post-hearing factual findings by an AJ will be upheld if supported by

substantial evidence in the record. Substantial evidence is defined as

�such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.� Universal Camera Corp. v. National Labor

Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding

regarding whether or not discriminatory intent existed is a factual

finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).

An AJ's conclusions of law are subject to a de novo standard of review,

whether or not a hearing was held.

Harassment of an employee that would not occur but for the employee's

protected activity under the anti-discrimination statutes is unlawful,

if it is sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d

1129, 1138-1139 (D.C. Cir. 1985). In order to prove a case of harassment,

the complainant must establish, by a preponderance of the evidence,

the existence of five elements: (1) she is a member of a statutorily

protected group; (2) she was subjected to harassment in the form of

unwelcome verbal or physical conduct involving the protected group;

(3) the harassment complained of was based on the statutorily protected

group; and (4) the harassment affected a term or condition of employment

and/or had the purpose or effect of unreasonably interfering with her

work environment and/or creating an intimidating, hostile, or offensive

work environment; and (5) that there is a basis for imputing liability

to the employer. McLeod v. Social Security Administration, EEOC Appeal

No. 01963810 (August 5, 1999). After a review of the record, we find

that complainant has not established that the acts of harassment she has

alleged were based on her membership in protected groups. We further

conclude that the AJ's finding of no discrimination is supported by

substantial evidence in the record.

After a careful review of the record, the Commission finds that the

AJ's findings of fact are supported by substantial evidence in the

record and that the AJ's decision properly summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

We note that complainant failed to present evidence that any of

the agency's actions were motivated by discriminatory animus toward

complainant's sex, age, or disability. We discern no basis to disturb

the AJ's decision. Therefore, after a careful review of the record,

including complainant's contentions on appeal, the agency's response,

and arguments and evidence not specifically addressed in this decision,

we affirm the agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 8, 2002

__________________

Date

1 The record indicates that the basis of race was withdrawn by

complainant. See Hearing Transcript (HT) at p. 5.

2 At all relevant times, S1 was the Supervisor for Distribution

Operations.