Patricia Betoni, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 24, 2002
01a14690 (E.E.O.C. Oct. 24, 2002)

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