01971483
03-03-1999
Deborah Anderson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Deborah Anderson, ) Appeal No. 01971483
Appellant, ) Agency No. 1G-784-1013-94
v. ) Hearing No. 360-95-8260X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. See EEOC Order No. 960.001. In her
complaint, appellant alleged that she was discriminated against based on
her sex when, after advising her supervisor that she was pregnant,<1>
she was allegedly advised that it was in her best interest to resign
from the agency, she was denied workplace benefits, and her performance
was criticized.
Appellant timely sought EEO counseling and filed her instant EEO
complaint, which was accepted and investigated by the agency. Thereafter,
appellant timely requested a hearing before an EEOC Administrative Judge
("AJ"). After a hearing, the AJ issued a recommended decision ("RD")
finding no discrimination.
Appellant was in her second appointment as a Transitional Employee
(�TE�) when she advised her supervisor on January 11, 1994, that she was
pregnant. While appellant alleged that the supervisor responded that
it would be in her best interest to quit because he eventually would
have to fire her, the supervisor denied saying this and asserted that
appellant asked him whether a resignation would be held against her.
The supervisor maintained that he merely responded that a resignation
would not be held against her and offered to give her a letter if she
needed it. The AJ held that �even assuming ... that [the supervisor]
advised [appellant] that it would be in her best interest to resign or
he would have to eventually fire her because of her pregnancy,� that this
constituted no more than a proposal to take a personnel action which was
subject to dismissal pursuant to the provisions of 29 C.F.R. �1614.107(e).
Appellant, who continued to work until she sustained an injury to her
back in February (as discussed below), also alleged that because of her
pregnancy, the supervisor then kept her on sweeping duties, moved her
from one machine to another unloading hampers of mail, and denied her
rest breaks. However, the AJ found that TEs had no regular assigned
duties, and that appellant never advised her supervisors of any medical
restrictions due to her pregnancy. (In addition, TEs are not entitled to
light duty under the applicable collective bargaining agreement.) The AJ
found that rest breaks were set up for the TEs on a rotating basis and
that, while the supervisor's testimony that he treated appellant �with
kid gloves� was �self serving and less than candid,� appellant was not
treated differently than other TEs with respect to rest breaks or the
assignment of duties. While her supervisor was crude in his criticisms of
appellant's allegedly slow performance, the AJ noted that similar remarks
were directed to employees outside of her protected class and found that
the supervisor addressed her in the same �crude and offensive manner
in which he addressed the other TEs placed under his supervision.� The
record reflects that appellant incurred an on-the-job injury to her back
on February 10, 1994, and left work on continuation-of-pay for 45 days.
On February 26, 1994, while still away from work on continuation-of-pay,
she had a miscarriage. In April 1994, appellant applied for workers'
compensation and has never returned to work.
In the RD, the AJ found that appellant failed to establish that she
had been subjected to discrimination based on her sex. In its FAD,
the agency adopted the RD.
On appeal, appellant, through her counsel, argues that after appellant
advised her supervisor that she was pregnant she �was given orders by
her doctor to take two consecutive days off from work and was given
further orders shortly thereafter, stating some work limitations
[and although she] furnished her supervisor ... with these orders,
[he] ignored the doctors orders.� However, this assertion contradicts
appellant's testimony at the hearing, where she stated that her physician
did not place any limitations on her because of her pregnancy. HT at 150.
While she testified that she had limitations because of a prior back
strain incurred in July 1993, and was not supposed to be lifting from
low levels, her testimony indicated that the supervisor had never honored
these medical restrictions. See HT at 150-153.
The appeal brief contends that following disclosure of her pregnancy,
appellant was made to work in a hostile environment and that her complaint
should not be viewed as merely isolated instances of mistreatment, but
instead read as ongoing harassment which placed so much stress on her
that she miscarried. The Commission notes that, in order to establish
a case of harassment that creates a hostile working environment, the
harassment of which appellant complains generally must be severe or
ongoing and continuous in order to constitute unlawful discrimination.
A few isolated incidents are usually not sufficient to show harassment.
McGivern v. United States Postal Service, EEOC Request No. 05930481 (March
17, 1994); Vargas v. Department of Defense, EEOC Request No. 05931047
(October 7, 1993). Therefore, in assessing whether the alleged harassment
affected a term, condition, or privilege of appellant's employment,
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. McGivern, citing Rabidue v. Osceola Refining Co., 805 F.2d 611,
620 (6th Cir. 1988); Gilbert v. City of Little Rock, 722 F.2d 1390, 1394
(8th Cir. 1993).
In this regard, the Commission notes that the AJ erred in finding that
appellant's allegation that her supervisor advised her to resign was
subject to dismissal pursuant to the provisions of 29 C.F.R. �1614.107(e).
The agency had previously dismissed that allegation on the basis that
it failed to state a claim. On appeal, the Commission reversed the
agency's dismissal and found that appellant was entitled to include this
allegation as part of her claim that she was subjected to a hostile
environment based on her sex. See EEOC Appeal No. 01945117 (December
7, 1994). Accordingly, the AJ erred in isolating this allegation from
the remainder of appellant's complaint.
Nonetheless, after a thorough review of the record, the Commission
finds no basis to disturb the AJ's ultimate finding that appellant
failed to establish that she was subjected to a hostile environment
based on her sex during the 28-day period from January 11, 1994 (the
date she disclosed her pregnancy) to February 10, 1994 (the date she was
placed on continuation-of-pay as the result of an on-the-job injury).
The Commission has carefully reviewed the record in this regard, and
finds no reason to reverse the AJ's specific finding that appellant was
not treated in a less favorable manner after disclosure of her pregnancy
on January 11, 1994, than she was treated prior to the disclosure.
Further, while no specific determination was made by the AJ on this
point, the Commission finds that the weight of credible evidence does
not establish that the supervisor, upon being notified of appellant's
pregnancy, stated that it would be in her best interest to quit because
he eventually would have to fire her. It is, therefore, the decision
of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 3, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1
The Pregnancy Discrimination Act (Pub.L. 95-955) is an amendment to Title
VII which prohibits, among other things, discrimination in employment
because of sex. The Pregnancy Discrimination Act makes it clear the
"because of sex" or "on the basis of sex," as used in Title VII, includes
"because of or on the basis of pregnancy, childbirth or related medical
conditions." Therefore, Title VII prohibits discrimination in employment
against women affected by pregnancy or related conditions.