Christal R. Montgomery-Darnes, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 11, 2005
01a40936 (E.E.O.C. Mar. 11, 2005)

01a40936

03-11-2005

Christal R. Montgomery-Darnes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Christal R. Montgomery-Darnes v. United States Postal Service

01A40936

March 11, 2005

.

Christal R. Montgomery-Darnes,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A40936

Agency No. 1-H-326-0015-01

DECISION

Complainant timely initiated an appeal from an agency final decision

concerning her complaint of unlawful employment discrimination brought

pursuant to 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. 29 C.F.R. � 1614.405.

During the relevant time, complainant was employed as a Flat Sorter

Machine Operator at the agency's Pensacola, Florida Processing and

Distribution Center facility. On December 15, 2000, complainant sought

EEO counseling, and subsequently filed three formal complaints, the

last on March 6, 2001, which were consolidated under the captioned

agency number.

In her formal complaint, complainant claimed that the agency subjected

her to harassment and discrimination, on the bases of disability

(subluxation of the cervical and lumbar spine with associated radicular

pain, fibromyalgia, and a major depressive disorder) and in reprisal

for prior EEO activity when:

(1) On November 13 and 27, 2002, the plant manager (PM) refused to treat

complainant's absence as leave under the Family Medical Leave Act (FMLA);

On November 28, 2000, management scheduled complainant for a second

opinion medical examination without providing any reason for doing so,

and in apparent violation of its own regulations;

On December 4, 2000, mail delivered to complainant's home had been

tampered with;

On December 20, 2000, management scheduled complainant for a Fitness

For Duty (FFD) examination without providing any reason for doing so,

and in apparent violation of its own regulations;

On December 20, 2000, an Acting Supervisor (AS) made remarks of a

political nature regarding the 2000 presidential election which offended

complainant;<1> and

On January 4, 2001, a named supervisor (S) interrupted complainant's

break when he had a co-worker send her to him from the rest room to

remind her to attend her FFD examination.<2>

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge, or

alternatively, to receive a final decision by the agency. Complainant

initially requested a hearing, but then withdrew that request, and

instead asked that the agency issue a final decision.

In its final decision, the agency concluded that complainant failed to

establish a prima facie case of disability discrimination or reprisal.

Regarding disability, the agency determined that although complainant

was obviously afflicted with an impairment, and despite complainant's

designation of being �totally disabled for useful and efficient

service in her assigned position,� she nonetheless failed to show that

she was a qualified individual with a disability, as required by the

Rehabilitation Act. In particular, the agency found that complainant

failed to present sufficient evidence to show that she was substantially

limited in a major life activity, including working.<3>

The agency next determined that complainant failed to establish a prima

facie case of reprisal, because the record failed to show that management

subjected complainant to an adverse employment action. The agency

determined that PM did approve the absence at issue as leave under

FMLA (claim (1)), and that complainant never reported for the scheduled

medical examination, and received no adverse consequences for failing to

do so (claims (2) and (4)). As to claim (3), the agency found that the

record lacked sufficient evidence to identify who purportedly tampered

with complainant's mail, so retaliatory animus could not be inferred.

The agency then found that the incidents described in claims (5) and

(6) were merely remarks not accompanied by an agency action, such that

complainant was not rendered aggrieved.

The agency concluded that complainant provided no evidence to suggest

retaliatory intent or discriminatory motivation based on disability,

and found no discrimination regarding the captioned complaint.<4>

On appeal, complainant submits a lengthy personal statement, contending

that management continually harassed her and treated her unfairly

because of her inability to perform the full functions of her position,

and because of the numerous EEO complaints she filed against the agency.

Claim (1)

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health

for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)

(analyzing a disparate treatment claim under the Rehabilitation Act);

and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to reprisal cases), the Commission agrees

with the agency that complainant failed to establish a prima facie

case of disability discrimination or reprisal. Specifically, we find

that the record shows that by written notice dated December 1, 2000, PM

ultimately approved complainant's request for the 40 hours of sick leave

at issue under FMLA. We note that this leave was taken between the dates

of November 14, 2000 and November 29, 2000, such that we find no undue

delay in the issuance of the approval. We also find that complainant

provides no evidence to challenge this determination. Additionally,

we find no other evidence from which a reasonable fact-finder could

draw an inference of discrimination regarding this matter. See Furnco

Construction Corp. v. Waters, 438 U.S. 567,576 (1978). Accordingly, we

concur with the agency's finding of no discrimination regarding claim 1.

Claims (2) and (4)

Regarding claim (2), the record reflects that complainant was originally

scheduled for a second opinion examination, but that an agency official

associated with the District Health Unit (AO), determined that this was

an error, and that PM had instead requested that complainant undergo an

FFD examination, as set forth in claim (4). The record further reflects

that PM attested that he initially requested the examination as a routine

matter, to assess complainant's current physical limitations because

she was in a permanent light duty status. The record also shows that

complainant provided verbal and written notice to AO and PM that she

would not submit to either examination, and instead provided her own

medical documentation. The record confirms that complainant did not,

in fact, report for the scheduled FFD examination, and that the agency

essentially dropped the matter, taking no recourse against complainant.

As noted above, 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.

See Furnco, supra. Here, we find that the prima facie inquiry may

be dispensed with regarding claims (2) and (4) because 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). To ultimately prevail, complainant must prove,

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

pretext for discrimination. See Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000).

Complainant asserts that PM's proffered legitimate, non-discriminatory

reason for ordering the FFD examination is a pretext for disability

discrimination and reprisal. Complainant claims that PM arbitrarily

ordered the FFD examination, and that the agency otherwise failed to

inform her why either examination was necessary, opining that both

examinations violated the agency's regulations.

The record contains a copy of an January 2, 2001 e-mail from AO to PM,

which made reference to complainant's protest of the examinations,

but indicated that she was relying on the incorrect agency regulation

(342.51). This e-mail made reference to another agency regulation

(342.52), which AO identified as the applicable regulation in this

situation, which permitted the agency to ask any employee unable to

perform full duties to undergo a FFD examination. AO also indicated

that he tried to contact complainant to address her concerns, but

without success.

Based on the record before us, we find that notwithstanding complainant's

contentions to the contrary, the agency properly scheduled complainant

for a FFD examination, and endeavored to address complainant's concerns

as to the reason that the examination was ordered. Additionally, we find

that the agency's decision not to sanction complainant for refusing to

submit to these examinations, possibly because it accepted her medical

documentation in lieu of the FFD examination, further belies her claim

of disability discrimination and reprisal. Accordingly, we find no

discrimination regarding claims (2) and (4).

Claims (3), (5) and (6)

We find that these claims are most properly viewed altogether, and in

the context of the incidents identified in the previous claims, as a

claim of harassment.

Harassment of an employee that would not occur but for the

employee's race, color, sex, national origin, age, disability, or

religion is unlawful. See McKinney v. Dole, 765 F.2d 1129, 1138-1139

(D.C. Cir. 1985). A single incident or group of isolated incidents will

not be regarded as discriminatory harassment unless the conduct is severe.

See Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).

Whether the harassment is sufficiently severe to trigger a violation of

Title VII and the Rehabilitation Act must be determined by looking at all

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. See Harris v. Forklift Systems,

510 U.S. 17 (1993).

Complainant claimed that she was subjected to a hostile work environment

and harassment. 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); 29 C.F.R. �1604.11.

Regarding claim (3), an agency official stated that mail tampering claims

are handled by the �Inspection Service,� and there is no indication

that a mail tampering allegation made by complainant was validated by

the Inspection Service. We find that complainant presents no evidence

to show that this statement is untrue. Therefore, given the lack of

evidence that this incident occurred, we find that the alleged mail

tampering incident cannot be construed as contributing to the hostile

work environment claimed of by complainant.

Regarding claim (5), we find that the AS's remark (�This is cool!�)

describing a political cartoon in the coffee room, ostensibly representing

political humor regarding the vote count difficulties in the 2000

presidential election, was not directed toward complainant, and

cannot reasonably be construed as inherently offensive. Furthermore,

regarding the ensuing exchange between complainant and AS, wherein

complainant disagreed with AS's assessment that the cartoon was funny,

and AS suggested that complainant did not have a sense of humor, while

complainant may have been somewhat offended, this incident simply does

not rise to the level of harassment, even in the context of the other

incidents raised in this matter.

Regarding claim (6), wherein complainant claims that S interrupted her

break when he had a co-worker send her to him from the rest room to remind

her to attend her FFD examination, we find that even in the context of

complainant's other claims, this incident is simply not sufficiently

severe so as to constitute harassment. See Cobb v. Department of the

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

Accordingly, for the reasons set forth above, we find that complainant

failed to prevail in her harassment claim, and we concur with the agency's

finding of no discrimination regarding claims (3), (5), and (6).

Therefore, after a careful review of the record, we AFFIRM the agency's

final decision.

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

March 11, 2005

__________________

Date

1This appears as claim (4) in the agency's decision. The remark

concerned a diagram displayed in the coffee room, which said to count

all white dots for George Bush and all black dots for Al Gore, but the

diagram had no black dots. AS remarked that the diagram was �cool,�

and complainant disagreed. AS replied that one had to have a sense of

humor to appreciate it.

2This appears as claim (5) in the agency's decision.

3Complainant received disability retirement on March 14, 2002.

4The Commission presumes, for purposes of analysis only, and without so

finding, that complainant is a qualified individual with a disability.

See 29 C.F.R. � 1630.2(g); 29 C.F.R. � 1630.2(m).