Terri L. Baker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 29, 2006
01A55799 (E.E.O.C. Aug. 29, 2006)

01A55799

08-29-2006

Terri L. Baker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Terri L. Baker,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A55799

Hearing No. 340-2004-00573X

Agency No. 1F -906-0034-03

DECISION

On September 2, 2005, complainant filed an appeal from the agency's August

25, 2005 final order 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. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final order.

At the time of events giving rise to this complaint, complainant worked

as a Mailhandler at the Worldway Airport Mail Facility.

On March 26, 2003, complainant contacted an EEO Counselor and filed a

formal EEO complaint on June 14, 2003, alleging that she was discriminated

against in reprisal for prior protected EEO activity.

By letter dated July 2, 2003, the agency accepted the complainant's

complaint for investigation and determined that complainant's complaint

was comprised of the following claims:

1. on [March 26, 2003], complainant was issued a Notice of Removal,

charging her with conduct unbecoming a postal employee, subsequently

reduced to a 14-day suspension; and

2. on unspecified dates, complainant was subjected to ongoing

harassment by a named shop steward and management took no action.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. Thereafter, the AJ granted the agency's motion

for a decision without a hearing and issued a decision on July 7, 2005.

Regarding claim (1), the AJ found that complainant failed to establish a

prima facie case of retaliation. Specifically, the AJ stated that "the

evidence does not establish a causal connection because the previous EEO

activity is too distant in the past..." In addition, the AJ concluded

that assuming arguendo that complainant established a prima facie case

of retaliation, complainant failed to establish by a preponderance

of the evidence that the agency's articulated reasons for its actions

were pretextual. Specifically, the AJ stated that two agency managers

believed that complainant was responsible for a verbal altercation

with another employee (E1) after conducting an investigation and thus,

she was issued a Notice of Removal, which was subsequently reduced to

a 14-day suspension.

The AJ dismissed claim (2) for untimely EEO Counselor contact.

Specifically, the AJ stated that complainant failed to demonstrate

why she did not contact an EEO Counselor until 86 working days after

the last incident of harassment. The AJ, in his decision, stated

that complainant's harassment claim was comprised of the following

two incidents 1) E1 telling a supervisor in December 2002, to watch

complainant go to lunch; and 2) on December 30, 2002, E1 and another

co-worker drove "the tractor down to [c]omplainant's car and scratched

it."

The agency subsequently issued a final order dated August 25, 2005,

adopting the AJ's decision.

In response to complainant's appeal, the agency requests that we

affirm its final order. Regarding claim (2), the agency states that

even if claim (2) is timely "[c]omplainant failed to offer evidence

sufficient to show that the alleged incidents were in any way related

to her membership in a protected class or that the alleged incidents

were severe or pervasive."

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. In the context of an administrative proceeding,

an AJ may properly consider summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

Claim (1)-Notice of Removal Reduced to a Suspension

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She

must generally establish a prima facie case 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). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995)

The Commission finds that the record supports the AJ's determination

that the agency articulated a legitimate, nondiscriminatory reason for

its actions. The record contains an affidavit from a named manager (M1).

Therein, M1 states that complainant was issued a Notice of Removal for

conduct unbecoming a postal employee. M1 further asserts that on March

3, 2003, complainant was involved in an incident with E1. M1 asserts

that an investigation was conducted and that based on the statements

of witnesses and a report issued by the Postal Inspector, management

concluded that complainant was the aggressor in the incident.

The Commission further finds that the record supports the AJ's

determination that complainant failed to show that the agency's

articulated reasons for its actions were pretext for retaliation. While

complainant, in her affidavit, asserts that E1 was brought back to work

before she was following the March 3, 2003 incident, M1, in her affidavit,

states that "[t]he return dates [were] different due to [the] union and

[E1] settl[ing] on the offer sooner, [complainant] and the union did not

accept the offers that were given at the step 1 meeting." In addition,

as set forth above, M1 asserts that management believed that complainant

was the aggressor with respect to the March 3, 2003 incident.

Claim (2)-Harassment by E1

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Upon review of the record, we find that the AJ improperly dismissed

claim (2) for untimely EEO Counselor contact. The record reflects that

complainant is alleging that E1 harassed her and that management failed

to take appropriate action. While the AJ determined that complainant's

harassment claim comprised only two incidents that occurred in December

2002, we disagree. A fair reading of the record reflects that complainant

was also alleging that E1 harassed her based on their verbal altercation

on March 3, 2003. The record reflects that complainant initiated

EEO Counselor contact on March 26, 2003; thus, complainant initiated

EEO Counselor contact within 45 days of one of the alleged incidents

comprising complainant's harassment claim.

Nevertheless, the Commission finds that the alleged incidents comprising

complainant's harassment claim are not sufficiently severe or pervasive

to state an actionable claim of harassment.1 See Cobb v. Department of

the Treasury, EEOC Request No. 05970077 (March 13, 1997). In addition,

we note that complainant did not allege that she was being harassed

by E1 based on a protected class under the Commission's regulations.

The record contains a copy of the agency's interrogatories. Therein,

the agency asked complainant if she was claiming that she was harassed

by E1 for "some discriminatory purpose (race, age, sex, retaliation)"

and to state the facts in support of her claim. Complainant responded

that "[E1] harassed me when I purchased a new truck and was jealous.

On March 3, 2003, after asking her if she wanted to see me she [began]

arguing about my house and my car note." Based on these circumstances,

we find that complainant has failed to set forth an actionable claim of

harassment under the Commission's regulations.

Accordingly, for the reasons stated herein, we find that the AJ properly

granted summary judgment, as no genuine dispute of material fact exists

and we AFFIRM the agency's final order implementing the AJ's decision

finding no discrimination.

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

August 29, 2006

__________________

Date

1 The Commission notes that the agency in its motion for a decision

without a hearing and in its opposition to complainant's appeal asserted

that the alleged incidents comprising complainant's harassment claim

were not sufficiently severe or pervasive to state an actionable claim

of harassment.

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01A55799

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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01A55799