0120102926
05-04-2012
Carolyn R. Turnbow-Avery, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Carolyn R. Turnbow-Avery,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120102926
Agency No. 1C-451-0050-09
DECISION
On June 30, 2010, Complainant filed an appeal from the Agency's June 8, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler, PS-04, at an Agency work facility in Cincinnati, Ohio. On December 29, 2009, Complainant filed an EEO complaint wherein she claimed that the Agency subjected her to discriminatory harassment on the bases of her race (African-American), sex (female), color (black) and in reprisal for her prior protected EEO activity when:
1. On September 19, 2009, the Manager walked past Complainant's work area and advised her Supervisor she was not working.
2. On September 26, 2009, the Supervisor kept walking past Complainant, watched her, interrupted her and instructed her to get back to work.
Complainant claimed reprisal with regard to the following two incidents.
3. On December 9, 2009, management shared Complainant's EEO information with coworkers.
4. Complainant's supervisor made false and damaging statements on her evaluation for a reassignment/transfer request.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency determined that Complainant failed to prove that it subjected her to discrimination as alleged. Final Agency Decision at 17. With regard to the incident referenced in claim (1), the Agency noted that the Manager stopped by Complainant's unit and called her Supervisor, who then criticized her concerning what the Manager reported. Id. at 7. According to Complainant, the Manager walked by employees of other races, colors and gender, and said nothing. Id. As for the incident set forth in claim (2), the Agency stated that Complainant claimed the Supervisor said something to her when she was in his unit providing assistance. Id. Complainant stated that the Supervisor says nothing to employees of different races, colors and gender. Id. According to Complainant, the Supervisor was angry with her for filing an EEO complaint against another Supervisor whom he is dating. Id.
With respect to the incident at issue in claim (3), Complainant maintained that several employees approached her as to whether she had filed an EEO complaint. Id. Complainant stated that these employees mentioned that employees on the dock were saying that her Supervisor told them that they could not take long breaks anymore due to the allegations Complainant made in her EEO complaint. Id. at 7-8. Complainant charged that her Supervisor was angry at her for filing the complaint and was trying to turn the other employees against her. Id. at 8. In terms of claim (4), Complainant referenced her Supervisor's description in her performance evaluation that she had a poor attitude and poor work performance. Id. The Agency noted that Complainant's Supervisor rated Complainant "Marginal" in five of the ten evaluation categories. Id. According to Complainant, her Supervisor was angry with her because she speaks up about workplace issues. Id.
With regard to claim (3), the Agency determined that Complainant failed to establish that information about her complaint was shared with other employees. Id. at 9. The Agency noted that Complainant's Supervisor denied telling Complainant's coworkers they can no longer take long breaks because Complainant had filed a complaint. Id. The Agency determined that since Complainant failed to prove that she was subjected to an adverse employee action, she failed to establish a prima facie case of retaliation. Id.
As for the other three alleged acts of harassment, the Agency reasoned that none of these actions rise to the level of personal slurs, with denigrating or insulting conduct. Id. at 12. With respect to the two September incidents, the Agency stated that Complainant was simply directed to return to work at a time that she was supposed to be working. Id. As to the comments on Complainant's evaluation, the Agency stated that Complainant's Supervisor was performing a responsibility in evaluating Complainant's performance, and that Complainant asked for the evaluation because she was seeking a transfer. Id. Further, the Agency stated that the comments about Complainant's performance or attitude were not shown to have resulted in any adverse action. Id. With regard to the White female comparison cited by Complainant for claim (1), the Agency noted that the Manager stated that he did not take action since employees are allowed to talk as long as they are not totally unproductive. Id. at 13. As for the comparisons cited in claim (2), the Agency noted that the Supervisor stated that he took no action with regard to the two comparisons because, even though they were talking, they were both still performing their job duties. Id. The Supervisor stated that unlike Complainant, they were not seated on a piece of postal equipment. Id. The Agency determined that Complainant failed to establish a prima facie case of harassment as none of the alleged incidents were severe or pervasive enough to create a hostile work environment. Id.
The Agency further determined that Complainant failed to establish a prima facie case of reprisal. Id. at 14-15. The Agency stated that the relevant officials were not aware of Complainant's prior EEO activity. Id. at 14. The Agency further determined that Complainant was not subject to an adverse employment action and she did not suffer any personal loss related to a term, condition, or privilege of employment. Id. at 14-15.
The Agency also determined that it articulated legitimate, nondiscriminatory reasons for its actions. Id. at 16. In terms of claim (1), the Manager stated that he walked by Complainant's work area and observed her talking to another employee. Id. He further stated that he walked by approximately eight minutes later and Complainant was still talking to the same employee. Id. He stated that he contacted Complainant's Supervisor to inform the Supervisor of the situation. Id. With regard to claim (2), the Supervisor stated that he was walking by Complainant's work area, and she was sitting on a piece of equipment with her feet off the ground, having a conversation with a union steward not assigned to that work area. Id. According to the Supervisor, he requested the union steward leave and instructed Complainant to resume work. Id. The Manager stated as to this incident that union officials need to request to speak to employees through their Supervisor. Id. As for claim (4), Complainant's Supervisor stated that Complainant tried to coerce her into making false statements in completing an evaluation in support of a reassignment request. Id. The Agency determined that the record supports the conclusion that its reasons for the actions at issue were not pretext. Id. at 17. Thereafter, Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the Complainant's statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
Initially, we shall address claim (3) which contends that Complainant's Supervisor shared her EEO information with coworkers. The record offers no evidence that this occurred. The Supervisor denied that she provided such information to Complainant's coworkers. Complainant stated that several employees asked her if she had filed an EEO complaint in response to workers on the dock saying that they were told by Complainant's Supervisor that they could not take long breaks due to the EEO complaint that she filed. We note that Complainant failed to identify the coworkers who spoke to her about this matter as well as those employees on the dock who made the alleged statements. In light of there being no persuasive evidence to support Complainant's position that the alleged incident occurred, we find that Complainant failed to establish a prima facie case of reprisal as to claim (3).
As for claim (1), the Manager stated that he observed Complainant in her work area talking to another employee and eight minutes later, she was still talking to the same employee. The Manager stated that he informed Complainant's Supervisor of the situation. With regard to claim (2), the Supervisor stated that he observed Complainant in her work area, sitting on a piece of equipment with her feet off the ground, having a conversation with a union steward who was not assigned to that work area. The Supervisor indicated that he told Complainant to return to work and asked the union steward to leave. With respect to claim (4), Complainant's Supervisor completed pursuant to Complainant's request an evaluation for a possible reassignment. The Supervisor rated Complainant "Marginal" in five of the ten evaluation categories. The Supervisor also indicated that Complainant had a poor attitude and poor work performance.
With regard to the incidents set forth in claims (1), (2) and (4), we find that the alleged actions were not sufficiently severe or pervasive to constitute a hostile work environment. Moreover, there is no persuasive evidence that the incidents were unlawfully motivated. Thus, Complainant's claim of harassment fails.
CONCLUSION
The Agency's determination in its final decision that no discrimination occurred is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 4, 2012
__________________
Date
2
0120102926
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102926