0120131811
09-06-2013
Shareen K. Cartlidge-Wertz, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Shareen K. Cartlidge-Wertz,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120131811
Hearing No. 541-2008-00236X
Agency No. 4E-800-0255-07
DECISION
Complainant filed an appeal from the Agency's March 13, 2013, final order concerning her equal employment opportunity (EEO) complaint. She alleged 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed on a detail as an Acting Manager of Customer Services (Station Manager) at the Agency's Briargate Station in Colorado Springs, Colorado. Her permanent duty station was at the Bayfield, Colorado, facility.
On November 19, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female), disability (injury from car accident),1 and reprisal for prior protected EEO activity when:
1. In 2007, she was denied reasonable accommodation in the form of reduced work hours when management officials ignored her medical restrictions after a car accident; and
2. during 2007 and continuing, management denied her adequate staff, denied her access to needed resources, threatened her with discipline, increased observation of her performance, denied her requested travel reimbursement and leave requests, and subjected her to verbal abuse and harassment.
This matter was the subject of a prior appeal decision. In Cartlidge v. United States Postal Service, EEOC Appeal No. 0120092200 (February 10, 2011), EEOC reversed the entry of summary judgment and remanded the complaint for a hearing. Following the five-day hearing at which 17 witnesses testified, the Administrative Judge (AJ) issued a decision on February 25, 2013, concluding no discrimination had been proven. The Agency issued its final order adopting the AJ's decision and this appeal followed.
During the hearing, the evidence showed that just prior to the events at issue, Complainant worked for the Post Office as the Station Manager in Bayfield, Colorado. Starting in March of 2007, she was detailed to the position of Station Master at the Briargate station in the Colorado Spring Post Office. Her first line supervisor was the Manager, Customer Service Operations (MCSO). She also reported to the Postmaster of the Colorado Springs Post Office. He served as Postmaster from August 2005 to October 2007. In testimony, witnesses described him as confrontational with everyone and a manager who frequently humiliated the staff.
On Friday, March 24, 2007, Complainant was involved in an automobile accident. She suffered soft tissue injuries and was released from the hospital within hours of the accident. She returned to work on Monday, March 27, 2007. She provided management with her doctor's release that limited her to working six hours per day for 30 days.2 Her request to work limited hours was without any specifics about Complainant's condition and she did not submit medical documentation to the Agency showing any medically-required restrictions beyond the six-hour limitation.
During this period, Complainant would come to work in the morning, go to therapy, and then return to work until the station closed. Complainant wanted to take two days off a week, but was told by the Postmaster that there was not the staffing available to do that. Complainant believed that she would lose her job if she did not keep working. Complainant said she often worked twelve hour days and sometimes skipped her medical or physical therapy appointments because there was no supervisor to cover the station.
In April 2007, a female employee reported to Complainant an incident of sexual harassment/sexual assault by a Briargate carrier. Complainant reported the matter to the Postal Inspectors. Following an investigation, Complainant proposed the removal of the carrier. However, upper level management did not support the removal and he was returned to the workplace. This carrier was later removed after he was criminally convicted.
In June 2007, yet another female employee alleged that she had been sexually harassed and reported the harassment to Complainant, which Complainant reported. The record includes testimony that the Postmaster was particularly angry that Complainant had elevated the April 2007 sex harassment claim and was now acting on another sex harassment complaint because he did not believe that the complaints was merited attention. He was heard yelling over the phone and Complainant was observed crying.
From March through the summer of 2007, the record shows that there was a demonstrated shortage of supervisors throughout the Colorado Springs area. During this period, Complainant, as well as other managers, were routinely denied staffing and other resource requests. The Postmaster also visited Complainant's station at Briargate several times each week to ensure her compliance with relevant accounting and administrative functions. In addition to not receiving help, Complainant was asked to help other stations, including inputting all rural routes in the area into the pay system.
While Complainant asserted that the Postmaster was often disrespectful and threatening, she received positive evaluations during this period.
The record shows that, in July 2007, one of the management officials denied Complainant's leave request ostensibly because she did not have a conversation with him and simply faxed in a leave request. Complainant was put on Absent Without Leave (AWOL) status as a result and received a letter of warning.
From July 6 to September 6, 2007, Complainant went out on full-time medical leave. When she returned to work, her detail to Briargate ended and she returned to her permanent position in Bayfield.
In October of 2007, after her detail ended, Complainant tried unsuccessfully to recover her per diem expenditures for the period of time when she on the detail. Management approved two of her requests, but denied the others. The Agency cited as its reason for the denial its policy regarding not paying for travel less than 50 miles from the permanent duty station. There is no evidence that the managers who denied the per diem requests were aware of Complainant's involvement with the sexual harassment complaints.
In her decision, the AJ found that the Agency did not discriminate against Complainant based on her sex, disability or any prior EEO activity.
With regard to Complainant's sex discrimination and harassment claims, the AJ found that the evidence did not show that women were harassed any more than the men. Specifically, the AJ found "the evidence reflects that both men and women were harassed, denied resources, and treated without respect." The AJ reasoned that Complainant made no effort to help herself which led the AJ to believe that Complainant did not believe her mistreatment was discrimination at the time she experienced it. Instead, the AJ found Complainant "was a very dedicated employee, and that she was not a person who could leave the job behind. In addition, she was respectful of authority, which exacerbated the abuse." The AJ continued, "Unfortunately, I cannot conclude that [the Postmaster's] abuse was motivated by gender." The AJ found that the evidence does not sustain a claim of a gender-based hostile work environment.
The AJ also concluded that Complainant was not an individual with a disability and thus, the Agency did not have to accommodate her.
With regard to the reprisal claim, the AJ concluded that management's refusal to provide Complainant assistance began before she engaged in any EEO activity; and that the individual who denied Complainant's per diem request was unaware of Complainant's protected EEO activity. The AJ further found that Complainant's managers were similarly unpleasant and hostile to employees who had not engaged in EEO activity.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed.
ANALYSIS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Complainant did not submit a brief in support of her appeal. The Agency requests that its decision be affirmed..
Disparate Treatment - Sex Discrimination
Section 717 of Title VII applies to the sex discrimination claim against the Federal government. Section 717 states that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination." Similarly, the Commission's regulations at 29 C.F.R. � 1614.101(a) provides "It is the policy of the Government of the United States to provide equal opportunity in employment for all persons [and] to prohibit discrimination in employment because of sex . . . ."
Generally, a complainant may establish discrimination by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). In this case, the record supports the AJ's finding both men and women were subjected to the same working conditions.
Disparate Treatment - Reprisal
Complainant can establish a prima facie case of reprisal by showing that: 1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). We agree with the AJ's finding that management's refusal to provide Complainant assistance began before she reported harassment. The individual who denied Complainant's per diem request was unaware of Complainant's protected EEO activity. The record shows that the managers were belligerent and hostile to employees who had not engaged in EEO activity.
Disability / Reasonable Accommodation
The Rehabilitation Act prohibits discrimination against individuals with disabilities and requires that federal agencies provide reasonable accommodation for the know disabilities of qualified individuals with disabilities.
This case arose before January 1, 2009. Under the pre-ADA Amendments Act framework, Complainant, as a threshold matter, must establish that she is an "individual with a disability" within the meaning of the Rehabilitation Act. An "individual with a disability" is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of that person's major life activities, i.e. caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. � 1630.2(j). An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. � 1630.2(j).
In this case, the record shows only that Complainant was involved in an automobile accident. She returned to work within several days of the accident. Her only request was to work six hours per day. Beyond this, her supervisors were not made aware of any medical limitations.
The AJ concluded that Complainant was not a qualified individual with a disability and thus, did not have to be accommodated. However, for purposes of this analysis, we will assume without finding that Complainant is an individual with a disability. The evidence shows that the Agency permitted Complainant to work limited hours, the only accommodation she requested.
Harassment
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct related to membership in that class; (3) the harassment complaint of was based on her membership in that class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and / or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Pullano v. U.S. Postal Service, EEOC Appeal No. 0120093726 (July 27, 2011) citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
We find, as did the AJ, that Complainant failed to establish that she was subjected to harassment that occurred because of her sex, alleged disability or reprisal. Every employee was subjected to the same hostile work environment which impacted men and women, those with or without disabilities and those with no prior EEO activity
In the instant case, we find no reason to disturb the AJ's findings because the findings are supported by substantial evidence in the record before us.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision.
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 tends 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 (November 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
September 6, 2013
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2007, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
2 The six-hour limitation was apparently extended as the record contains a doctor's release, dated April 24, 2007, for another 30 days.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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