01980167
07-05-2001
Judith A. Barbagallo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Judith A. Barbagallo v. United States Postal Service
0198 0167
07-05-01
.
Judith A. Barbagallo,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01980167
Agency No. 4D-280-0003-97
DECISION
Judith A. Barbagallo (complainant) filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from a final agency
decision (FAD) dated September 24, 1997, concerning her complaint alleging
that she was discriminated against on the bases of her sex (female)
and reprisal (prior Title VII activity) in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. (1994 & Supp. IV 1999). The appeal was postmarked October 6, 1997.
Accordingly, the appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issues presented on appeal are whether the complainant was
discriminated against as referenced above when:
On or about September 20, 1996, her pay stub was not placed in her post
office box, and on September 21, 1996, management failed to handle her
pay properly;
On September 20, 1996, no one was available at the office to answer
the customer call door or the telephone;
On September 21, 1996, complainant's supervisor (S-1) was rude and
unprofessional to her;
On September 23, 1996, she called to speak to S-1 but the Postmaster
(P-1) took the call and would not allow her to speak to S-1;
On September 27, 1996, complainant received a letter from P-1 stating
that he was the only person to whom she should direct her written and
verbal correspondence and;
On September 23, 1996, a co-worker had a conversation with a clerk
about her pay issues.
BACKGROUND
The record reveals that during the relevant time, complainant was on leave
without pay from her position as a Distribution Clerk at the agency's
Southern Pines, North Carolina facility. Complainant alleged that
on April 23, 1996, due to prior errors in her pay, she notified P-1 to
deliver her check to her post office box. Complainant alleged that on pay
date September 20, 1996, her pay stub was not placed in her postal box.
On finding that it was not available, complainant attempted to contact
an agency employee, but alleged that no one would answer the telephone
or the customer call door. Complainant alleged that she called the
office on September 21, 1996 and after inquiring about her check, was
told by S-1 in a rude and unprofessional manner that it would be placed
in her post office box. Complainant received a check on September 21st,
but called the office again on September 23, 1996 attempting to speak
to S-1. Complainant alleged that she was instead put through to P-1
who did not allow her to speak to S-1. Complainant further alleged
that a co-worker had a conversation with a clerk about her pay issues.
Complainant also alleged that on September 27, 1996, she received a
letter from P-1 that he was the only person to whom she should direct
her written and verbal correspondence.
In a signed affidavit, P-1 indicated that he was responsible for
delivering complainant's pay stub to her post office box but was unable
to do so on September 20, 1996 because he left the office early due to
a dental emergency. He further indicated that though S-1 could deliver
the pay stubs in his absence, he did not inform her that he had not
completed the distribution. Finally, P-1 indicated that he made a
decision to handle verbal or written contact to ensure that matters
would be handled in a professional manner.
Believing she was a victim of discrimination, complainant sought Equal
Employment Opportunity (EEO) counseling and subsequently filed a formal
complaint on November 15, 1996. At the conclusion of the investigation,
complainant received a copy of the investigative file and was informed
of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency found that to the extent complainant was alleging
that she was discriminated against because of her sexual orientation, it
had improperly accepted the matter for investigation and was dismissing
it for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a).
The agency went on to conclude that complainant had not established
a prima facie case of discrimination based on sex because she cited no
comparison employees who were not members of her protected group, who were
similarly situated to herself, yet were treated more favorably than she.
Further, the agency found that complainant had not established a prima
facie case of reprisal because P-1 testified that he was not aware of
complainant's prior EEO activity.
On appeal, complainant contended that while the agency found that
P-1 was unaware of her prior EEO activity, he was in fact a party to
those claims. Complainant also alleged that S-1's failure to respond
to the EEO investigator's inquiry into her current claim is further
evidence that S-1 could not deal with her in a professional manner.
Complainant also alleged that other clerks in the facility were able to
talk to S-1 without P-1's interference. Further, complainant alleged
that discrimination based on sexual orientation was forbidden by Postal
Service laws and the agency's own policy statement. The agency requests
that we affirm its FAD.
FINDINGS AND ANALYSIS
Before addressing the merits of the instant complaint, the agency found
that complainant's basis of harassment due to her perceived sexual
orientation was improperly accepted because it is not a basis covered
by the laws enforced by the Commission, and dismissed it for failure
to state a claim pursuant to 29 C.F.R. � 1614.107(a). We find that
the agency analysis was correct and affirm its finding on this basis.
The Commission notes however, that the agency analysis leading to
the finding that complainant failed to establish a prima facie case
based on her sex (female) because she did not show that she was treated
less favorably than similarly situated employees outside her protected
group was incorrect. Complainant must only present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. See O'Connor v. Consolidated Coin Caters Corp.,
517 U.S. 308 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
Nevertheless, applying the correct standards, we concur with the FAD.
To establish a prima facie case of hostile environment harassment, a
complainant must show that: (1) she belongs to a statutorily protected
class: (2) 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 statutorily protected class,
e.g., was motivated by complainant's sex, 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 a
hostile work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
Complainant incorrectly contends that discrimination based on
her perceived sexual orientation is actionable under Title VII. The
Commission has repeatedly held that discrimination based on sexual
orientation does not constitute discrimination based on sex actionable
under Title VII. See, e.g., Morrison v. Department of the Navy, EEOC
Request No. 05930964 (June 16, 1994) (claim that harasser told co-workers
that complainant was gay and had been seen kissing another man was based
on complainant's perceived sexual orientation, not his sex, and therefore
was not actionable as sex discrimination under Title VII). In support of
her proposed construction of Title VII, complainant also notes that the
agency issued a postal bulletin and policy statement that discrimination
based on sexual orientation is forbidden. However, enforcement of Title
VII does not imbue the Commission with the authority to address complaints
of discrimination based on sexual orientation, nor does it have authority
to enforce internal Post Office policies on this topic. In the instant
case, inasmuch as complainant concedes that the harassment at issue was,
in her view, motivated by a perception regarding her sexual orientation,
complainant has failed to satisfy the prima facie case requirement that
the harassment be �because of� her sex.
We also find that complainant failed to demonstrate that the alleged
harassment was severe or pervasive, as required to establish a prima facie
case of harassment. As noted above, establishment of a prima facie case
requires that the alleged harassment be sufficiently severe or pervasive
to alter the conditions of the victim's employment by creating a hostile
abusive working environment. Relevant factors include the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994); Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6. "Conduct that is
not severe or pervasive enough to create an objectively hostile work
environment - an environment that a reasonable person would find hostile
or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22
(1993). Here complainant referenced the September 20, 1996 incident,
the first since she forwarded the written request to P-1 to put the pay
stub in her postal box in April 1996. Therefore, based on a thorough
review of the record, we do not find this severe or pervasive standard
satisfied in the instant case.
With respect to complainant's retaliation claim, we note that the
agency incorrectly applied the standard used in analyzing the claim.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411
U.S. at 802). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, and Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran
Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1)
she engaged in a protected activity; (2) the agency was aware of her
protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. See also, Whitmire v. Air Force, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).
On appeal, complainant contends that she had filed two prior EEO
complaints (4D-280-1094-96 and 4D-280-1100-96) and included a copy
of an investigative affidavit signed by P-1 for those complaints.<1>
Complainant further contends that there was a nexus between her prior EEO
complaints and the instant case as the prior complaints were filed in part
because she was not being paid the proper amount in her pay check. We are
not persuaded however, that a nexus actually existed in this particular
instance as complainant has failed to establish that P-1's articulated
reason for not delivering her pay stub was false. Complainant provided no
comparative information, but indicated that the prior incidents regarding
her pay revolved around errors in her pay. She did not contend that
she has previously failed to receive her pay stub in a timely manner.
Here the record indicates that September 20, 1996, was the first time
that her check had not been delivered to her post office box in a timely
manner since she notified P-1 to deliver it there in April of 1996.
Further, the record indicated that due to a dental emergency, P-1 took
two hours of personal leave prior to the time that complainant tried
to pick up her pay stub. P-1 further indicated that he did not inform
S-1 that he had not completed the distribution of the pay stubs. Thus,
this appears to be a discrete event, unrelated to complainant's prior EEO
activity. Therefore, we find that complainant's evidence is insufficient,
either comparativly or otherwise, to permit an inference of retaliation.
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 FAD.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
_____07-05-01_________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________________
Date
1The agency did not respond to complainant's contentions on appeal.