0120082685
12-09-2008
Carla E. Perkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carla E. Perkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082685
Agency Nos. 1G-781-0018-07, 1G-781-0054-05
Hearing No. 451-2007-00221X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 6, 2008 final action concerning her two
consolidated formal complaints 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.
Complainant alleged that the agency discriminated against her on the
bases of race (African-American), sex (female), religion (Christian),
color (Brown), disability (obsessive-compulsive personality disorder),
age (43), and in reprisal for prior EEO activity when1:
(1) on September 22, 2005, [identified supervisor (S1)] gave her a
discussion (Agency No. 1G-781-0054-05);
(2) on November 3, 2005, she learned [S1] shared medical information
with her co-workers (Agency No. 1G-781-0054-05);
(3) on December 5 and 12, 2005, [identified supervisor (S2)] criticized
her performance and attendance and gave her an investigative interview
(Agency No. 1G-781-0054-05);
(4) she continued to be harassed by [identified co-worker (C1)] (Agency
No. 1G-781-0054-05);
(5) from July 20, 2006 through February 2007, she was harassed (Agency
No. 1G-781-0018-07);
(6) on January 31, 2007, she was issued a Letter of Warning (Agency
No. 1G-781-0018-07.
The record reflects that a hearing was held before an EEOC Administrative
Judge (AJ). After considering the testimony of the witnesses, the
AJ determined that complainant did not show by a preponderance of the
evidence that she was discriminated against on the bases of race, sex,
religion, color, disability2, age, and retaliation. With respect to
complainant's harassment claim, the AJ found that complainant did not
prove she was subjected to harassment sufficiently severe or pervasive
so as to render her work environment hostile.
Regarding claim (1), the AJ determined that based upon credible evidence,
the September 22, 2005 discussion was called by S1 for performance
reasons and not because of a prohibited factor. Regarding claim (2),
the AJ found that two of complainant's co-workers credibly testified
that they once saw S1 say that complainant "was on meds and out of it."
The AJ determined that while such action and statement by S1 was most
inappropriate for a supervisor, she did not find that it reached the
level of disclosure of medical information.
Regarding claim (3), the AJ noted in his testimony that S2 stated that he
had significant problems with complainant's performance and attendance,
and for these reason he had to closely monitor complainant. The AJ
further found no evidence in the record that these discussions were
investigative interviews.
Regarding claims (4) and (5), the AJ determined that after a review of the
record, the harassment in 2005 by C1 appeared to be occasional comments
to supervisors and other co-workers concerning complainant's performance,
and occasionally making comments when he walked by complainant's case.
The AJ determined that the evidence did not indicate that these comments
rose to the level of harassment. The AJ found S1's testimony to be
credible when she testified that she never saw or heard C1 harassing
or bothering complainant. Furthermore, the AJ found that several of
complainant's co-workers indicated that S1 was always trying to get
complainant to work faster. The AJ determined, however, that given
complainant's performance difficulties, this could not be considered
harassment.
Regarding claim (6), the AJ found complainant's supervisor, the
deciding official to issue complainant a Letter of Warning (LOW), to
be a credible witness at the hearing. Specifically, the AJ concluded
that after several attempts to contact complainant, and when complainant
failed to respond, S3 had no alternative but to issue complainant a LOW.
The AJ noted that during the relevant time, complainant received Family
Medical Leave Act (FMLA) leave which expired in August 2006, and that
her claim that she had on-the-job injury was denied in October 2006.
The AJ noted that because complainant was not at work, S3 sent complainant
a Notice of Report on November 20, 2006. Complainant's response was
that her FMLA request had medical documentation concerning her absence.
The AJ noted that because complainant's response was insufficient, S3
sent complainant another letter on December 8, 2006, stating that an
investigative interview was necessary. The AJ noted that on January
2, 2007, S3 sent complainant another letter stating an investigative
interview was needed to correct an error in the December 8, 2006 letter.
Because complainant failed to provide information and to appear for the
investigative interviews, S3 sent her a LOW on January 31, 2007.
Further, the AJ noted that when complainant failed to respond to the LOW,
S3 issued a Notice to Report on February 15, 2007. The AJ noted that
because complainant failed to respond to the February 15, 2007 Notice,
S3 sent another letter to complainant on February 24, 2007, calling
for an investigative interview. This letter was followed on March 5,
2007 with another investigative interview letter to correct errors in
the February 24, 2007 letter. The AJ that determined while complainant
alleged harassment by S3 when S3 sent her these letters, the evidence
in the record showed that complainant was not at work and that S3 needed
information to determine her status.
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 action
because the Administrative Judge's ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
December 9, 2008
Date
1 For ease of reference, the Commission has numbered complainant's claims
as claims (1) through (6).
2 The Commission presumes for the purposes of analysis only, and without
so finding, that complainant is an individual with a disability.
??
??
??
??
2
0120082685
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082685