Florenda B. Whiting, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionMay 15, 2007
0120055856 (E.E.O.C. May. 15, 2007)

0120055856

05-15-2007

Florenda B. Whiting, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Florenda B. Whiting,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 01200558561

Agency No. 4G-700-0023-04

DECISION

On August 29, 2005, complainant filed an appeal from the agency's July 29,

2005, final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 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 decision (FAD).

On February 18, 2004, complainant alleged discrimination in

violation of Title VII and the Rehabilitation Act on the bases of race

(African-American), color (Black), sex (female), disability (adjustment

disorder stress) and in retaliation for prior EEO activity when: (1)

on November 21, 2003, her Supervisor (S1) sexually harassed her when

he used his position to provoke and badger her; (2) on January 27,

2004, she was transferred to the agency's Lake Forest Station; and (3)

on February 17 and 18, 2004, she was denied work and on other specified

dates in February of 2004, she was denied work.

The record indicated that at the time of the events at issue, complainant

was employed as a Full-Time City Carrier, CC-01, at the New Orleans Post

Office in New Orleans, Louisiana ("facility"). 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). When complainant did not request

a hearing within the time frame provided in 29 C.F.R. � 1614.108(f),

the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b)

concluding that complainant failed to prove that she was subjected to

discrimination as alleged.

The agency's FAD found that complainant failed to establish a prima

facie case of discrimination on the alleged bases, as she failed to

demonstrate that she was treated differently than were similarly situated

employees outside of her protected groups. Specifically, the FAD found

that complainant failed to identify that there were any Full-Time City

Carriers outside her protected groups who were treated more favorably

than she was under similar circumstances. As such, the FAD found that

complainant failed to establish a prima facie case of race, color or

sex discrimination.

Addressing complainant's allegation of disability discrimination, the FAD

found that as complainant failed to provide medical evidence which would

establish that she had an impairment which substantially limited one or

more of her major life activities. In so finding, the FAD noted that

complainant alleged her disability was an adjustment disorder/stress;

however, the FAD noted that complainant provided no documentation to

substantiate that condition, nor is there any evidence that any of her

major life activities were substantially limited by her alleged condition.

Further, the FAD found that complainant failed to establish that she has

a record of a disability or that she was regarded as if she was disabled.

In addition, the FAD found that complainant failed to establish a prima

facie case of retaliation, as there was no evidence that agency officials

were aware of her prior EEO activity, and there was a time period of

14 months between the prior EEO activity in September of 2002 and the

November 21, 2003 events between herself and S1.

Further addressing complainant's allegation of harassment with regard

to allegation (1), the FAD found that she failed to prove a prima

facie case of hostile work environment. In so finding, the FAD found

complainant failed to demonstrate that the alleged harassment was

based on a protected class. Further, the FAD found that complainant

failed to establish that the incidents she described concerning S1

(i.e., he "provoked and badgered" her) rose to the level of harassment.

The FAD found that even looking at the facts in a light most favorable

to complainant, the conditions of her employment were not sufficiently

severe or pervasive to create a hostile work environment.

The FAD also found that complainant failed to provide any specific

information relative to the alleged incident of sexual harassment on

November 21, 2003. The FAD noted that S1 stated he was complainant's

supervisor at the time, but there was no statement from complainant

describing or recounting the incident of sexual harassment. S1 stated

that complainant did not ask him to stop sexually harassing her because

he never engaged in such behavior. In fact, S1 stated that he asked

complainant to stop sexually harassing him. FAD at 9. According to S1,

between October 2002 and October 2003, he received various gifts that

he later learned were from complainant. S1 stated that he informed

complainant that he would never date someone with whom he worked.

A facility Manager (M1; male) stated that complainant asked him to speak

to S1 regarding an alleged act of sexual harassment that supposedly

occurred on November 21, 2003. M1 spoke to S1, and S1 told M1 that he

was not sexually harassing complainant, but had only instructed her on

her job duties. Another facility Manager (M2, male) stated that M1 told

him that complainant would file an EEO claim against S1 as she did not

want him giving her instructions. M2 also stated that an investigation

was conducted by the agency's Human Resources Office into complainant's

claim, but the investigation did not reveal any evidence in support of

complainant's allegation of sexual harassment against S1.

The FAD further found that the facility's Postmaster made the decision to

transfer complainant to the Lake Forest Station, as complainant stated she

could not work in the same building with S1 and M1. The FAD noted that

S1 did not have any information regarding complainant's allegation that

she was denied work in February of 2004. In addition, M1 and M2 stated

that they did not have any information or knowledge about complainant's

being denied work in February of 2004. Between February 17 and 19,

the record indicated that complainant used 15.5 hours of annual leave

and worked 7.84 hours. As such, the FAD found there was no evidence to

suggest that complainant was denied work on the dates at issue. Finally,

the FAD found that the procedural dismissals set forth in the agency's

November 9, 2004 Notice of Partial Acceptance/Partial Dismissal were

fully supported.2 Complainant has submitted no arguments in support of

her appeal, and the agency has not responded to complainant's appeal.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. See McDonnell

Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438

U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Department of the Navy,

EEOC Petition No. 03900056 (May 31, 1990).

The Commission initially finds that, assuming, arguendo, that complainant

established a prima facie case of discrimination and/or retaliation,

the agency articulated legitimate, nondiscriminatory reasons for its

actions in allegations (2) and (3).3 Regarding allegation (2), the

record indicates there were two (2) reasons given for the transfer:

(1) facility management stated that complainant was transferred to the

Lake Forest Station for three (3) weeks after she stated that she could

no longer work in the same building with S1 and M1; and (2) M1 stated

that complainant was an unassigned Carrier, and M2 was trying to find

work for her. Investigative Report (IR) at Affidavit B. M2 did not

recall the specific reason for complainant's temporary transfer, but

stated that complainant was an Unassigned Full-time City Carrier and

did not have a bid position. IR at Affidavit D.

Regarding allegation (3), M1 and M2 stated they had no knowledge regarding

complainant being denied work in February of 2004. The record indicates

that on February 17, 2004, complainant took 8 (eight) hours of annual

leave, with .5 hours of work time and 7.5 hours of annual leave on

February 18, 2004. The record also reflects that complainant worked a

full day on February 19, 2004. IR at Exhibit 7. The record also reflects

that during February of 2004, complainant could work only the hours that

the agency's Uptown Station could provide her under the limitations she

had; at that time, she could only case mail. IR at Affidavits B and C.

As such, we concur with the FAD's finding that there was no evidence to

conclude that complainant was denied work due to discriminatory animus

as she alleged.

In determining whether an objectively hostile or abusive work environment

existed, the trier of fact should consider whether a reasonable person in

the complainant's circumstances would have found the alleged behavior to

be hostile or abusive. Even if harassing conduct produces no tangible

effects, such as psychological injury, a complainant may assert a

Title VII cause of action if the discriminatory conduct was so severe

or pervasive that it created a work environment abusive to employees

because of their race, gender, religion, or national origin. Rideout

v. Department of the Army, EEOC Appeal No. 01933866 (November 22,

1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))

request for reconsideration denied EEOC Request No. 05970995 (May 20,

1999). Also, the trier of fact must consider all of the circumstances,

including the following: 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. Harris, 510 U.S. at 23.

Complainant alleged that on November 21, 2003, S1 began to become

aggressive towards her and spoke to her in an unprofessional and

provocative manner. The record establishes that an investigation was

conducted by the agency's Human Resources Office into complainant's

allegations, and the investigation did not disclose any evidence to

support complainant's allegations of sexual harassment. IR at Exhibit 2.

The record indicates that following complainant's allegation of sexual

harassment on November 21, 2003, a supervisor investigated the allegation.

S1 denied sexually harassing complainant and stated that he had never seen

a statement from complainant describing the act(s) of sexual harassment,

and stated the only incident he recalled on the date at issue involved

the correction of a PS Form 3971 (leave slip). Witness testimony

corroborated S1's statement that on the date at issue, he spoke to

complainant about her leave slip, and that complainant responded that

S1 was not her Supervisor. IR at Exhibit 2.

S1 testified that complainant never asked him to stop sexually harassing

her because there was no reason for complainant to ask him to stop. In

addition, S1 stated that he asked complainant to stop sexually harassing

him, as he discovered complainant had anonymously given him gifts at the

Customer Service Window such as balloons and flowers. IF at Affidavit B.

M1 stated that he spoke to S1 about complainant's allegations, but that

S1 told him that he was only instructing complainant and was not sexually

harassing her. IR at Affidavit C. We find that the record indicates

that, on November 21, 2003, S1 spoke to complainant in his role as her

supervisor about her failing to properly complete a leave slip. There is

no indication from the record, other than complainant's allegations

otherwise, that S1 sexually harassed her, or spoke to her about anything

other than job-related matters. At least one agency witness stated that

he overheard S1 speak to complainant only about her incorrect filing of

the leave slip. We note that complainant conceded that there were no

documents or physical evidence of the alleged harassment. Further, the

agency's investigation into complainant's allegations did not disclose

any evidence of sexual harassment by S1. Under these circumstances,

we find that complainant failed to carry her burden of persuasion in

establishing that she was sexually harassed by S1 on the date at issue.4

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the agency's

FAD.

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

__05/15/07___________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 We note that the agency dismissed complainant's allegations (4)-(9),

for failure to state a claim under 29 C.F.R. � 1614.107(a)(1).

These allegations, which arose between September 22, 2003 and March 3,

2004, involved matters such as erroneous information being submitted by

the agency's Injury Compensation Clinic; complainant feeling threatened

by a co-worker and being disrespected by a facility Manager; an agency

Supervisor (female) conducted an investigation/inquiry into complainant's

sexual harassment complaint; a note from S1 on an Observation of

Work Practice form; and when complainant was questioned by S1 and an

agency Manager about an alleged inappropriate sign she made using her

middle finger. The agency found that complainant was not an aggrieved

employee, as the agency's action(s) did not cause any concrete effect

on her employment status. Further, the agency found complainant did

not suffer any measurable harm from the agency's actions. Among other

things, the agency found that complainant was engaging in a collateral

attack on the OWCP process, and that she failed to show how she was

aggrieved by a pre-disciplinary oral discussion with S1. The agency

noted that complainant did not allege that she was disciplined due to the

discussion, or that a written record was kept. The agency then found that

complainant could not demonstrate that she incurred an actual personal

loss or harm from any of the agency's actions. In the instant appeal,

we find that, although complainant did not expressly address the claims

that were the subject of the agency's partial dismissal, complainant has

not established that she suffered a personal loss or harm regarding a

term, condition or privilege of her employment. See Cobb v. Department

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

we find that the agency properly dismissed these claims on the grounds

that they failed to state a claim.

3 For the purposes of analysis, and without so finding, we will assume

that complainant is an individual with a disability in the instant case.

4 To establish that she was subjected to a hostile work environment,

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

conduct; (3) the complained of harassment was based on her 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. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.

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0120055856

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120055856