01a14690
10-24-2002
Patricia Betoni, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia Betoni v. United States Postal Service
01A14690
10/24/02
.
Patricia Betoni,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14690
Agency No. 4C-170-0076-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 decision.
The record reveals that during the relevant time, complainant was
employed as a Parcel Post Distribution Clerk at the agency's Harrisburg
Processing & Distribution Center, Harrisbug, Pennsylvania facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on June 25, 2001, alleging that she was discriminated against
on the bases of race (Caucasian), sex (female), disability (heart, lung,
Rheumatoid Arthritis), and age (D.O.B. 2/11/43) when she was subjected to
disparate treatment by her supervisor with respect to her job assignments.
At the conclusion of the investigation, complainant 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 concluded that complainant failed to establish
she is an individual with a disability because she failed to articulate
how her impairments substantially limit any major life activities.
Furthermore, the agency found no evidence of any physical restrictions
or requested accommodations. The agency also found complainant failed
to establish a prima facie case of discrimination on any other bases
because she failed to identify any similarly situated individuals outside
of her protected classes who were treated more favorably than she was
under similar circumstances.
The agency also analyzed the complaint as a claim of hostile work
environment harassment. In that regard, the agency found that complainant
failed to establish a prima facie case of harassment because she failed
to establish that her supervisor harassed her because on complainant's
race, sex, age or disability. Specifically, the agency noted complainant
failed to identify any comments made by the supervisor which were related
to complainant's race or sex. Furthermore, the agency found insufficient
evidence of any treatment which rose to the level of harassment.
Complainant makes no new contentions on appeal. The agency asks that
we affirm the final decision.
As an initial matter, we agree with the agency that complainant's
complaint alleges harassment because of race, sex, age and disability.
To establish a prima facie case of hostile environment/harassment,
a complainant must show that: (1) she is a member of 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
After a careful review of the record, we find complainant failed to
establish a prima facie case of harassment on any bases because she
failed to establish that any conduct complained of was because of a
protected class. In that regard, complainant presented insufficient
evidence that the conduct was related at all to complainant's age, sex
or race. Although one witness averred that he heard the supervisor yell
at complainant about her inability to lift magazines, we are unable to
find that the harassment alleged was because of a disability. In that
regard, complainant presented no evidence, testimonial or documentary,
that detailed any of her limitations.
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 FAD.
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
10/24/02
Date