W. Lynn Burrage-Graham, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 8, 2004
01A41025_r (E.E.O.C. Apr. 8, 2004)

01A41025_r

04-08-2004

W. Lynn Burrage-Graham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


W. Lynn Burrage-Graham v. United States Postal Service

01A41025

April 8, 2004

.

W. Lynn Burrage-Graham,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A41025

Agency No. 1C-081-0029-01

Hearing No. 170-A3-8159X

DECISION

Complainant timely initiated an appeal from the agency's final action

concerning her equal employment opportunity (EEO) 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.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

The record reveals that complainant, a Full-Time Distribution Clerk at

the agency's Wilmington Processing and Distribution Center in Wilmington,

Delaware, filed a formal EEO complaint on November 28, 2001, alleging

that the agency subjected her to a hostile work environment on the basis

of religion (Jehovah's Witness) when on March 23, 2001 and continuing,

she is being harassed.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of harassment based on her religion. The AJ further concluded that

assuming arguendo, complainant established a prima facie case of hostile

work environment discrimination, the agency nonetheless articulated

legitimate, nondiscriminatory reasons for its actions. The AJ found

that complainant failed to establish that she had been subjected to a

hostile work environment, as the actions alleged fail to rise to the

level of actionable harassment under the regulations. Specifically,

the AJ found that there was a lack of showing of specific examples

of harassments with dates reflecting that the incidents occurred on

or after March 2001, and a lack of showing that these incidents were

based on complainant's religion. The AJ also found that the isolated

incidents between complainant and co-workers did not amount to creating

a hostile work environment. Finally, the AJ found that there was a

personal conflict between complainant and co-workers, but that the

personal conflict was not motivated by discrimination.

The agency's final action implemented the AJ's decision.

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.

In considering whether the alleged discriminatory actions at issue

constitute actionable harassment, the Commission notes that in Harris

v. Forklift Systems, Inc. 510 U.S. 17 (1993), the Supreme Court

reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57

(1986), that harassment is actionable if it is sufficiently severe

or pervasive that it results in an alteration of the conditions of

the complainant's employment. See EEOC Notice No. 915.002 (March 8,

1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.

To establish a claim of harassment a complainant must show that: (1)

she belongs to a statutorily protected class; (2) she was subjected

to unwelcome verbal or physical conduct involving the protected class;

(3) the harassment complained of was based on the statutorily protected

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 McCleod v. Social Security

Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson

v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Furthermore, in assessing whether the complainant has set forth an

actionable claim of harassment, the conduct at issue must be viewed in

the context of the totality of the circumstances, considering, inter

alia, the nature and frequency of offensive encounters and the span of

time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);

EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050,

No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request

No. 05970077 (March 13, 1997). However, as noted by the Supreme Court

in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), "simple

teasing, offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the 'terms and

conditions of employment." The Court noted that such conduct "must be

both objectively and subjectively offensive, [such] that a reasonable

person would find [the work environment to be] hostile or abusive, and

... that the victim in fact did perceive it to be so." Id. See also

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark

County School Dist. v. Breeden, 532 U.S. 268 (2001).

Here, the Commission finds that complainant has not established a claim of

hostile work environment harassment. We concur with the AJ's finding that

complainant has not established that she was subjected to discriminatory

conduct that was so severe or pervasive as to alter the terms or

conditions of her employment (i.e. a verbal exchange with a co-worker;

having material pulled out of her hands; being called a �hypocrite�).

Therefore, after a careful review of the record, the Commission finds that

the AJ's findings of fact are supported by substantial evidence in the

record and that the AJ's decision referenced the appropriate regulations,

policies, and laws. We discern no basis to disturb the AJ's decision.

Accordingly, we AFFIRM the agency's final action.

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

April 8, 2004

__________________

Date