0120061507
08-29-2007
Gwendolyn Grant, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gwendolyn Grant,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200615071
Agency No. 4F-940-0045-05
Hearing No. 370-2005-00499X
DECISION
Complainant filed an appeal with this Commission from the December 8,
2005 agency decision finding no discrimination.2
Complainant alleged that the agency discriminated against her on the
bases of race (Black), sex (female), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when continuing
from December 14, 2004, she was subjected to threats, verbal abuse, and
assaults from a male coworker and management failed to take any action.
Complainant also alleged that she was denied safety, denied wages,
and forced from work.
In its decision finding no discrimination, the agency found that
complainant had failed to establish a prima facie case of reprisal,
noting that the management officials were not aware of the prior EEO
activity and that the prior EEO activity was remote in time to the
alleged discrimination which is the subject of her complaint. Regarding
harassment, the agency stated that complainant had not shown that the
alleged actions of Co-Worker A were sufficiently severe or pervasive
so as to give rise to a hostile work environment. The agency also
concluded that even assuming that complainant had established a prima
facie case of discrimination, management had articulated legitimate,
nondiscriminatory reasons for its actions and as an affirmative defense
to any harassment, the agency had exercised reasonable care to prevent
and promptly correct any harassment by taking immediate and appropriate
corrective action. The agency noted that after the incident that occurred
in Supervisor A's office, Co-Worker A was transferred temporarily to
another unit. The agency also noted that police ruled that any contact
was incidental and that other employees who were questioned during the
course of the agency investigation stated that they had not witnessed any
threats, verbal abuse or assaults by Co-Worker A towards complainant.
The agency also noted that Supervisor A had contacted the Police and
Postal Inspection Service and concluded that no harassment had occurred
and that complainant's working environment was not unsafe.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it as
such. Harris, supra at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
To establish a prima facie case of harassment, a complainant must show
that: (1) s/he belongs to a statutorily protected class; (2) s/he 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 and (5)
some basis exists to impute liability to the employer, i.e., supervisory
employees knew or should have known of the conduct but failed to take
corrective action.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, complainant
may establish a prima facie case of reprisal by showing that: (1)
complainant engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
In her affidavit, complainant stated that on December 14, 2004, when
she arrived for work at about 6:00 a.m., she saw Co-Worker A's car
and she called the San Francisco police to escort her to work which
the police did. Complainant further stated that around 11:15 a.m.,
Supervisor A called her into his office and that she left his office when
Supervisor A's telephone rang. When she returned to the office, Co-Worker
A pushed complainant with the door and also pushed her with his shoulder.
Complainant further stated that she called for help from Supervisor A
and Supervisor A ordered Co-Worker A out of the office. She stated that
Co-Worker A was sent to another facility until December 29, 2004.
Complainant stated that she sought medical attention on December 14,
2004, and was unable to work the following day. Complainant also stated
in her affidavit that she was unable to cope when Co-Worker A returned
to work and that no further efforts were made by the agency to provide
her with work until March 15, 2005, and that she received no pay during
the time she was away from work.
The record contains the affidavit of Supervisor A and a statement that
he submitted as part of an investigation of complainant's claim of
harassment. These records reflect that Supervisor A called complainant
into his office on December 14, 2004, to inquire about her calling
the police. He also stated that when Co-Worker A tried to enter the
office at the same time as complainant, complainant tried to block
the door and there was contact between complainant and Co-Worker A.
The records also reflect that complainant called the police and the
police determined that the contact was an incidental contact between
complainant and Co-worker A. Supervisor A also stated that Co-Worker A
was reassigned to another facility from December 15, 2004 to December 28,
2004, for a cooling off period.
The record contains complainant's PS Form 3972 Absence Analysis for
Leave Years 2004 and 2005. The form reflects that complainant was on
annual leave for December 15, 24, 28, and 31, 2004, and that she was on
a combination of annual leave and leave without pay from December 31,
2004 through March 15, 2005.
The record reveals that complainant engaged in prior EEO activity in
1993 and 2000.
Upon review, the Commission finds that the agency's finding of no
discrimination was appropriate. Complainant has failed to establish a
prima facie case of discrimination. Regarding harassment, the Commission
notes that other than the incident which occurred in December 2004,
complainant has not identified any other incident of alleged harassment
between her and Co-Worker A. The record also reveals that the agency
promptly investigated complainant's claim of harassment. Complainant
also has not shown that she was denied safety at work or that the agency
forced her from work or denied her wages. Furthermore, complainant has
not established any causal nexus between her protected bases and the
alleged adverse treatment or that any similarly situated persons were
treated differently than she was under similar circumstances.
Even assuming that complainant established a prima facie case, she has
not shown that she was subjected to unlawful discrimination or reprisal.
Mere allegations without proof cannot sustain a finding of discrimination.
The Commission cannot find that complainant was subjected to a hostile
work environment for discriminatory reasons or that any alleged actions
of the agency were motivated by discriminatory animus. Accordingly, it is
the conclusion of this Commission that complainant has failed to show by a
preponderance of the evidence that any unlawful discrimination occurred.
The agency's decision finding no discrimination is AFFIRMED.
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
August 29, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
2 The Commission notes that the EEOC Administrative Judge (AJ) remanded
this matter to the agency for a decision after complainant failed to
respond to the AJ's Notice of Intent to Consider
Issuance of a Decision without a Hearing and Order, dated October 3,
2005, which informed the parties that the AJ was considering resolving
the case without hearing and which also informed complainant that her
failure to respond to the Notice would be construed by the AJ as a
request to withdraw complainant's hearing request. Complainant failed
to respond to the AJ's Notice and the AJ remanded the matter. On appeal,
complainant has not challenged this action by the AJ.
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0120061507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036