01997082
01-29-2002
Mary A. Summers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary A. Summers v. United States Postal Service
01997082
January 29, 2002
.
Mary A. Summers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997082
Agency No. 1I-531-0016-99
DECISION
INTRODUCTION
On September 21, 1999, Mary A. Summers (the complainant) timely<1>
filed an appeal with the Equal Employment Opportunity Commission
(the Commission) from a final agency decision (FAD) dated August 5,
1999, concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. The Commission hereby accepts the
appeal in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
her based on race and disability when management subjected her to a
hostile work environment by allowing a co-worker to harass her.
BACKGROUND
Complainant was employed by the agency as a Modified Distribution Clerk
at the agency's facility in Milwaukee, Wisconsin. Believing she was a
victim of discrimination, complainant sought EEO counseling. She filed
a formal complaint dated December 18, 1998, alleging discrimination
on the bases of race (Black) and disability (Multiple Sclerosis and an
on the job injury) when, on August 24, 1998, management subjected her
to a hostile work environment by allowing a co-worker to harass her by
throwing away �label sets,� and when on October 1, 1998, the co-worker
cursed and yelled at her. Complainant claimed that a co-worker (CO-1)
had thrown away the label sets used in the course of the duties performed
in her area. Complainant claimed that CO-1's actions made more work for
her, and she complained on two occasions to the Manager of Distribution
Operations (MO) regarding CO-1's actions. She stated that CO-1 continued
to throw away the label sets and the harassment escalated, culminating
with CO-1 cursing and yelling at her, saying she was �nothing but a
light duty clerk.� Complainant claimed that MO allowed this to continue.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified complainant 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 complainant had failed to establish a
prima facie case of harassment because she was unable to demonstrate that
CO-1's behavior was based on her race or disability. It found that her
allegations did not �establish the existence of an objectively hostile
environment.� It noted that �it is apparent that the complainant and
[CO-1] did not like each other,� but stated that complainant did
not produce evidence that CO-1's behavior had anything to do with
complainant's race or disability. The FAD further stated that the
agency took reasonable steps to address complainant's complaint once it
was brought to the attention of management officials, and that it was
promptly investigated. It noted that CO-1 had no supervisory authority
over complainant. MO testified that when she inquired of CO-1 as to
why he threw away the label sets, he stated that one time the labels
were incorrect due to changes in the sort plan and another time the
labels that were thrown away were overstock. According to MO, the
facility automatically received labels every two weeks from an agency
facility in Kansas. Because of the automatic receipt, any overstock
could be discarded. The agency concluded that complainant had not been
discriminated against as alleged.<2>
Complainant appealed, without comment.
ANALYSIS AND FINDINGS
It is well-settled that harassment in the workplace constitutes an
actionable form of discrimination under Title VII. Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). Harassment of an employee that
would not occur but for the employee's race, color, sex, national origin,
age, disability or religion is unlawful if it is sufficiently patterned
or pervasive. Garretson v. Department of Veterans Affairs, EEOC Appeal
No. 01945351 (April 4, 1996); McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985). The Commission's Enforcement Guidance: Vicarious
Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999) identifies two types of such harassment:
(1) harassment that results in a tangible employment action; and (2)
harassment that creates a hostile work environment. Based on the facts
of this case, we will analyze this matter as an allegation of harassment
that creates a hostile work environment.
To establish a prima facie case of hostile environment harassment,
the 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; 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. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
We find that complainant has not established a prima facie case of
harassment based on either her race or disability. We assume for the
sake of argument that complainant was a member of each protected class.
We find, however, that the conduct complained of was not sufficiently
severe or pervasive to the point where it altered the complainant's
employment and created an abusive working environment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). In so finding, we
note that regarding the incidents cited by complainant in which CO-1
was discarding label sets, CO-1 claimed to have legitimate business
reasons for his actions, and after investigating, MO determined that
CO-1 had acted properly. These incidents represent a disagreement
between complainant and CO-1 over the proper way to carry out the job
duties in their area. We also note that in considering the incident in
which CO-1 yelled and cursed at complainant, we find that this does not
establish the existence of an abusive working environment, in that it
was a one time occurrence, and CO-1 was subsequently disciplined for it.
Additionally, once complainant put MO on notice of the situation, an
investigation promptly took place. We find, therefore, that complainant
has not established that she was discriminatorily harassed.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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
January 29, 2002
__________________
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
______________________________
1 The FAD was received by complainant on August 17, 1999. Her appeal was
received by the Commission on September 21, 1999; the envelope did not
bear a legible postmark. Under EEOC Regulation 29 C.F.R. � 1614.604(b),
a document is deemed timely if, in the absence of a legible postmark, it
is received by mail within five days of the expiration of the applicable
filing period. Appeals to the Commission must be filed within thirty (30)
calendar days after an appellant receives the agency's final decision.
29 C.F.R. �1614.402(a). Complainant's appeal was due on September 16,
1999, and it was received by the Commission within five days of that date.
We therefore deem it to have been timely filed.
2 The record reveals that CO-1 was issued a letter of warning for the
incident where he cursed and yelled at complainant.