0120102924
05-10-2012
Mary C. Perkins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Mary C. Perkins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120102924
Agency No. 4A-088-0101-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the June 4, 2010 final Agency decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Post Office in Toms River, New Jersey. Complainant had been working in a temporary detail assignment as an Acting Supervisor at the Little Silver Post Office since June 2007. Complainant claimed that in January 2009, the Agency froze hiring and promotional opportunities pending district reorganization. However, Complainant alleged that the Agency violated that policy when it hired a Supervisor (S1) for the supervisor position in which she had been acting, causing her to be "demoted" back to her Rural Carrier position at the Toms River Post Office. Complainant claimed that S1 constantly harassed her and asked her daily when she was leaving.
On November 19, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, Agency management prevented her from advancing into management, constantly harassed her and demoted her to carry mail, refused to file her medical compensation forms, and incorrectly charged her leave without pay despite her requests for sick leave.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).
In the FAD, the Agency determined that it had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, management asserted that Complainant was an Acting Supervisor and was thus unable to bid on the Supervisor position whereas S1 was in fact reassigned to the position. Further, Complainant did not attend the prerequisite Associate Supervisor Program (ASP) so she could not be promoted into the position or any others in management. The ASP was suspended in 2009 and informational sessions were held regarding the interim system, but Complainant failed to sign up to attend any of the sessions. Regarding her leave claims, management affirmed that her requested sick leave was approved and any problems with her pay check would have the corrections and/or adjustments made as with any employee.
S1 contended that upon arriving at the Little Silver Post Office, Complainant was unhappy with him being there and instead of showing him how to do things, she neither talked to him nor helped him make the transition into his new position. Further, S1 asserted that Complainant's injury compensation documents were submitted to the Postmaster. Finally, Agency management maintained that after Complainant returned to her Rural Carrier position in June 2009, she no longer needed internet and intranet access for management programs. Therefore, it was revoked in accordance with normal procedure.
The Agency determined that Complainant had presented no evidence that its reasons for its actions were pretextual. Further, the Agency concluded that the alleged incidents were not sufficiently severe or pervasive to constitute a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she has tried to be a team player and had received no complaints about her ability to lead. Complainant alleges that she has been subjected to comments from managers that no one should tolerate. Further, Complainant maintains that she was denied opportunities to enter the ASP program. Accordingly, Complainant requests that the Commission reverse the FAD.
ANALYSIS AND FINDINGS
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are 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); Enforcement Guidance at 6. The Supreme Court has stated that: "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).
To establish a claim of hostile environment harassment, 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 his statutorily protected class; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Here, Complainant asserted that based on her prior protected EEO activity, management subjected her to a hostile work environment. Complainant alleged numerous incidents of what she believed to be retaliatory harassment. The Commission finds, however, that Complainant failed to show that these incidents were unlawfully motivated. Specifically, as to Complainant's claim that she was denied career advancement, the Post Office Operations Manager (M1) affirmed that all craft employees requesting advancement into management were required to make their request through their immediate supervisor or apply for entrance into the ASP program. ROI, at 114. The record reveals that Complainant had not requested advancement to her supervisor, had not been approved into the ASP program, and had no bid rights on the Supervisor position. Id. at 120, 136. The Learning, Development, and Diversity Manager (M2) affirmed that the ASP program was suspended around March 2009, while a new supervisor training and promotion process was implemented. ROI, at 172. Further, M2 noted that she conducted informational sessions regarding the interim system; however, the record reveals that Complainant did not attend any of the sessions. Id.
The record reveals that S1 applied for and was granted a lateral hardship transfer into the Little Silver Supervisor position after Complainant's detail assignment ended. Id. at 114. As a result, Complainant was returned to her Rural Carrier position at the Toms River Post Office. The record reveals that Complainant did not report back to the Toms River Post Office, was granted sick leave until it was exhausted, and was then charged leave without pay in lieu of sick leave. Id. at 121. Finally, as to her compensation forms, S1 affirmed that they were sent to the Postmaster and subsequently submitted to the Injury Compensation Office for the South Jersey District. Id. at 121, 153.
S1 denied that he harassed Complainant daily; rather, he stated that when he arrived at the Little Silver Post Office, Complainant seemed upset with him there and made his transition more difficult. ROI, at 152. S1 noted that he did once ask Complainant when she was returning to her duty assignment, and she became upset and stormed off. Id.
The Commission finds that Complainant has not shown that she was subjected to a retaliatory hostile work environment. While Complainant has cited various incidents where Agency management took actions that seemed adverse or disruptive to her, the Commission finds that Complainant failed to show that these incidents were a result of unlawful reprisal. Further, to the extent Complainant is alleging disparate treatment, she has not shown that the Agency's reasons for its actions as articulated above were a pretext for reprisal discrimination. Thus, the Commission finds that Complainant was not retaliated or subjected to a hostile work environment as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 (Nov. 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 10, 2012
Date
2
0120102924
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013