01a5558001a60947
07-31-2006
Sherry L. Smith-Woodring, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sherry L. Smith-Woodring,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A55850, 01A60947
Hearing No. 350-2004-00046X
Agency Nos. 4F-852-0065-03, 4F-852-0150-03, 4F-852-0073-05
DECISION
Complainant filed timely appeals with this Commission from agency decisions
dated August 4, 2005, and October 12, 2005, regarding her complaints of
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. Pursuant to 29 C.F.R. � 1614.606, upon review, the
Commission consolidated complainant's complaints for processing.
BACKGROUND
During the relevant period, complainant was employed as a General Clerk at
an agency facility in Phoenix, Arizona. On January 10, 2003, complainant
initiated contact with an EEO Counselor, and on May 30, 2003, she filed a
formal complaint (Complaint 1) alleging that (1) she was subjected to
discrimination on the bases of disability (shoulder pain and depression)
and reprisal for prior protected EEO activity when:
(a) on November 20, 2002, she was denied Sick Leave Dependent Care
(SLDC);
(b) on December 9, 2002, management made her stay on overtime for a
Fact-Finding;
(c) on December 17, 2002, management gave her a discussion on WIN SSI;
(d) on January 9, 2003, management told her that she was going to be
moved from Ahwatukee Station;
(e) on January 13 and 17, 2003, she spoke with management concerning a
pay adjustment for overtime she was due and management has not
completed the necessary paperwork for payment.
Subsequently, on August 22, 2003, complainant initiated contact with an EEO
Counselor, and filed a formal complaint (Complaint 2) dated October 16,
2003, alleging that (2) she was subjected to a hostile work environment on
the bases of disability (shoulder pain and depression) and reprisal for
prior protected EEO activity when:
(a) on an unspecified date, her leave request for March 12 through
March 21, 2003 was denied;
(b) on April 9, 2003, her leave request for forty hours of Annual
Leave (A/L) was denied;
(c) around May 12, 2003, her verbal request to change Prime Time leave
scheduled for May 26 through May 30, 2003 to one day of leave was
refused;
(d) on August 21, 2003, she was accused of lying and misrepresentation
on a leave slip;
(e) on August 22, 2003, her request to convert 112 hours of A/L (March
12 through March 31, 2003) to Leave Without Pay (LWOP) was denied, and
she was accused of petty actions;
(f) on August 26, 2003, she was told repeatedly in an aggressive tone
to get off the clock and the supervisor refused to sign a leave slip;
and
(g) on August 20, 2003, her request to convert A/L taken March 21
through March 31, 2003 to Court Leave was denied.[1]
At the time of events giving rise to the third complaint, complainant
worked as a Sales Service/Distribution Associate at an agency facility in
Phoenix, Arizona. On March 9, 2005, complainant initiated contact with an
EEO Counselor alleging that (3) the agency subjected her to a hostile work
environment on the bases of disability (shoulder pain and depression) and
reprisal for prior protected EEO activity when:
(a) on February 3, 2005, a supervisor (S1) denied complainant's
request for leave as untimely;
(b) on February 4, 2005, complainant's duty hours were changed;
(c) on February 8, April 11, 13, and 28, 2005, S1 refused to meet
with complainant on Step 1 grievance;
(d) on February 15, 2005, S1 approached complainant while she was
talking to a co-worker and asked her if she was off the clock;
(e) on February 16, 2005, S1 agreed to meet with complainant on Step
1 grievance, but only if another manager was present as a
witness;
(f) on February 16, 2005, S1 gave direct order to complainant to
call a specific number to report absence;
(g) on February 18, 2005, complainant was denied IOD LWOP;
(h) on February 24, 2005, S1 refused to input time for February 22
absence;
(i) on February 24, 2005, S1 gave complainant a direct order to
report to window at 0900 and on May 17, 2005, she was again
ordered to be on window between 0900 and 1030 every morning;
(j) on February 25, 2005, complainant was told to only give leave
slips to S1;
(k) on March 1, 2005, complainant was chastised for not being at the
window at 0900;
(l) on March 2, 2005, complainant received copies of leave slips for
February 25, 2005 stating that they were approved pending
documentation, but complainant had not previously been given
notification of such a requirement;
(m) on March 7, 2005, complainant was asked to read and sign stand
up form. S1 approached complainant while she was on the phone
and wrote her a note telling her to "get back to the window
ASAP;"
(n) on March 8, 10, 14 and 17, 2005, complainant's requests for
official EEO time were denied or modified;
(o) on March 9, 2005, complainant was told to provide documentation
for each day off for chronic pain;
(p) on March 9, 10, 28 and April 14, 2005, complainant was denied
access to supervisor's office;
(q) on March 10, 2005, complainant was denied request for a PS Form
3972 to verify leave had been input correctly; and
(r) on March 21, 2005, complainant was yelled at by S1 and told to
report to window everyday after lunch unless on a special
project.
Subsequently, complainant filed a formal complaint (Complaint 3) alleging
hostile work environment harassment, but did not list the incidents alleged
in the pre-complaint.
On June 23, 2003, the agency issued a Partial Acceptance/Dismissal in which
it dismissed incident (1)(a) for untimely EEO contact and incidents (1)(c)
and (d) for failure to state a claim. In a Partial Acceptance/Dismissal
dated October 30, 2003, the agency dismissed incidents (2)(a) through
(2)(c) for untimely EEO contact. However, the dismissals are not indicated
in the final actions.[2]
Regarding Complaints 1 and 2, at the conclusion of the investigations,
complainant elected to request a hearing before an EEOC Administrative
Judge (AJ). The AJ consolidated the complaints and issued a decision
without a hearing on June 21, 2005. The AJ found that complainant failed
to show that the legitimate nondiscriminatory reasons articulated by the
agency for its actions were pretext, or that the actions as alleged rose to
the level of a hostile work environment. On August 4, 2005, the agency
issued a Final Action, fully implementing the AJ's finding that complainant
failed to prove that she was subjected to discrimination as alleged. The
instant appeal, docketed as EEOC Appeal No. 01A55850, followed.
On appeal, complainant argues that the AJ erred in issuing a summary
judgment decision as there were genuine issues of material fact.
Additionally, complainant argues that the agency improperly dismissed
several claims. The agency requests we affirm its notice of final action.
Regarding Complaint 3, in a final agency decision (FAD) dated October 12,
2005, the agency dismissed incident (3)(b) on the ground of untimely EEO
contact and incidents (3)(a) and (c) through (r) for failure to state a
claim.
ANALYSIS
COMPLAINTS 1 AND 2
In rendering this appellate decision, regarding complaints 1 and 2, we must
scrutinize the AJ's legal and factual conclusions, and the agency's final
order adopting them, de novo. See 29 C.F.R. � 1614.405(a).
First, we must determine whether it was appropriate for the AJ to issue a
decision without a hearing on the record. The Commission's regulations
allow an AJ to issue a decision without a hearing when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court
has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to
the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for
summary judgment, a court's function is not to weigh the evidence but
rather to determine whether there are genuine issues for trial. Id. at
249. The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the non-
moving party's favor. Id. at 255. An issue of fact is "genuine" if the
evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver
v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of the case. If a
case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. After a careful review of the record, the
Commission finds that the issuance of a decision without a hearing was
appropriate.
Next, we conclude that through all of the incidents alleged in Complaints 1
and 2, complainant essentially alleged a discriminatory hostile work
environment, and we must determine if such is the case. The agency
dismissed incidents (1)(a) and (2)(a) through (2)(c) on the ground of
untimely EEO contact, pursuant to 29 C.F.R. � 1614.105(1), which states
that an aggrieved person must initiate contact with a Counselor within 45
days of the date of the matter alleged to be discriminatory.
The record discloses that, the complainant first sought EEO counseling on
January 10, 2003, in reference to incident (1)(a), which was six days
beyond the 45-day limitation period. The record further discloses that
complainant first sought EEO Counseling on August 22, 2003, in reference to
incidents (2)(a) through (2)(c), which was at least 125 days beyond the 45-
day limitation period. However, the Supreme Court has held that a
complainant alleging a hostile work environment will not be time barred if
all acts constituting the claim are part of the same unlawful practice and
at least one act falls within the filing period. See National Railroad
Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court
further held, however, that "discrete discriminatory acts are not
actionable if time barred, even when they are related to acts alleged in
timely filed charges." Id. Finally, the Court held that such untimely
discrete acts may be used as background evidence in support of a timely
claim. Id. We find that the agency properly dismissed incidents (1)(a) and
(2)(a) through (2)(c) as independent claims on the ground of untimely EEO
contact because the raised incidents were "discrete acts" that fall outside
the filing period, but they may be considered as evidence to support
complainant's harassment claim.
As to incidents (1)(c) and (1)(d), we find that they were improperly
dismissed by the agency for failure to state a claim. EEOC Regulation 29
C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall
dismiss a complaint that fails to state a claim. The Commission has held
that where a complainant does not challenge an agency action or inaction
regarding a specific term, condition or privilege of employment, the claim
may survive as evidence of harassment if it is sufficiently severe or
pervasive to alter the conditions of the complainant's employment. See
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Whether the
harassment is sufficiently severe to trigger a violation of EEO statutes
must be determined by looking at all of the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (March 8, 1994). The Commission finds that complainant has not
alleged a personal loss or harm regarding a term, condition, or privilege
of her employment but has alleged actions that could rise to the level of a
hostile work environment, when not fragmented and considered with the other
actions alleged.
Regarding complainant's claims of harassment alleged in Complaints (1) and
(2), we find that complainant failed to prove a hostile work environment.
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.
See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998). Further, the incidents must have been "sufficiently
severe and pervasive to alter the conditions of complainant's employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. at 21; see also Oncale v. Sundowner Offshore Services, Inc.,
23 U.S. 75 (1998). In the case of harassment by a supervisor, complainant
must also show that there is a basis for imputing liability to the
employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). We
find that complainant has not shown that the agency actions alleged rose to
the level of a hostile work environment or were motivated by discriminatory
or retaliatory animus.
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 order,
because the Administrative Judge's issuance of a decision without a hearing
was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred. Complainant failed to show that
the agency's actions were based upon discriminatory or retaliatory motives.
COMPLAINT 3
Regarding Claim 3, based on the aforementioned standard, the Commission
finds that the agency properly dismissed incidents (3)(a) and (3)(c)
through (3)(r) for failure to state a claim. Complainant failed to show
that the incidents as alleged were sufficiently severe or persuasive to
state an actionable claim of harassment. See Harris v. Forklift Systems,
Inc., 510 U.S. at 23. Further, upon review of the record, the Commission
finds that the agency properly dismissed incident (3)(b) on the ground of
untimely EEO contact because the raised incident was a "discrete act" that
falls outside the filing period and there is no viable harassment claim for
it to support. Morgan, supra.
CONCLUSION
Accordingly, after careful review of the record and evidence not
specifically addressed in this decision, both the final order finding no
discrimination in Complaints 1 and 2 and the agency's final decision
dismissing Complaint 3 for failure to state a claim and untimely EEO
contact are 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 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), 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
July 31, 2006
__________________
Date
-----------------------
[1] We note that, in the Partial Acceptance/Dismissal and formal complaint
incident (2)(d) is said to have occurred on August 21, 2003 while the FAD
and AJ decision states that it occurred on August 31, 2003. Also, in the
FAD and AJ decision, incident (2)(g) is stated to have occurred on August
27 while the formal complaint states said events occurred on August 20,
2003.
[2] We note, pursuant to 29 C.F.R. � 1614.110, the agency shall indicate
the rationale for dismissing any claims in the final action.