0120100570
08-10-2012
Joyce A. Adesanya, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Joyce A. Adesanya,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120100570
Hearing Nos. 560-2008-00098X, 560-2009-00080X
Agency Nos. 4J-6300-070-07; 4J-6300-041-08
DECISION
On November 12, 2009 Complainant filed an appeal from the Agency's October 8, 2009, final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Level 5 Sales Service Distribution Associate Clerk, at the Greenville, Illinois Post Office. On August 24, 2007, Complainant filed an EEO complaint (Agency No. 4J-6300-070-07) alleging that the Agency subjected her to harassment based on her race (Caucasian), color (White), age (54), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. The Postmaster (PM) routinely telephoned Complainant at home between 3:00 a.m. and 4:00 a.m. and instructed her to report several hours before her scheduled report time;
2. During December 2006, Complainant was the only employee told where and how to park her car;
3. Complainant was routinely denied travel time to another post office;
4. Complainant's hours were removed from her schedule so she could attend a meeting that PM forgot to schedule;
5. Complainant's request to attend a meeting with a motivational speaker was denied;
6. Complainant consistently worked afternoon hours; and her request for
"fairer and more just" schedules was refused;
7. Complainant has not been converted to a full-time regular status; and
8. Complainant subjected to ongoing retaliatory harassment by the PM since November 8, 2007.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on August 18, 2009. Three witnesses, including Complainant, testified at the hearing, and six exhibits were admitted. After the close of Complainant's case, the AJ determined that, "based upon the testimony and evidence presented at the hearing together with the ROI, Complainant's allegations of discriminatory and retaliatory harassment failed to render her aggrieved." AJ's Decision at 2. The AJ asked if the Agency desired to request a "directed verdict." Hearing Transcript at 295. The Agency requested a "directed verdict." Id. After hearing Complainant's objections, the AJ granted the motion and indicated that she would issue a decision in favor of the Agency. Id. at 298. The AJ cancelled the hearing and stated that she would "issue a written decision on the record based upon the documents in the file, the testimony that was given today and all of the evidence of record." Id.
The AJ issued a decision on September 28, 2009. In her decision, the AJ determined that Complainant's harassment failed to state a claim. Further, the AJ found that even assuming Complainant stated a claim, she failed to show that "any of the incidents . . . were due to her protected group status." AJ Decision at 28. The AJ further found that "Complainant misinterpreted routine events as harassing behavior when, in reality, there were common sense, legitimate, non-discriminatory explanations for the Agency's actions. Even a cursory review of the record clearly demonstrates that Complainant's assertions are without merit . . . ." Id. With regard to Complainant's allegations that she was retaliated against since November 8, 2007, the AJ found that "the evidence demonstrates that all of the incidents complained of by Complainant resulted from her refusal to follow supervisory instructions and/or her dissatisfaction with PM's supervisory direction, rather than retaliatory animus." Id. at 33. The AJ concluded that Complainant failed to demonstrate that she was harassed as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues, in relevant part, that she was never informed that during the hearing she could "object to the answers of a witness," that the AJ prevented her from asking questions regarding the PM's treatment of individuals outside of her protected classes, and that the AJ interrupted her questioning of the PM and rushed her. Complainant also argues that off the record the AJ called her "stupid" and told her to "drop" her case. Complainant also reiterates her arguments that she was harassed and discriminated against as alleged.
In response, the Agency requests that the Commission affirm its adoption of the AJ's decision finding that Complainant was not harassed as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
As an initial matter, the Commission notes that there is no mechanism for a directed verdict in the EEOC hearing process. However, under 29 C.F.R. � 1614.109(e), the AJ has the power to regulate the conduct of the hearing, limit the number of witnesses where the testimony would be repetitious, and exclude irrelevant evidence. The Commission finds nothing improper in the AJ's actions prior to the hearing, during the hearing, or in her issuance of a decision in favor of the Agency after Complainant presented her case in chief.
To the extent that Complainant alleges she was not informed that she could object to the answers provided by a witness, we note that the hearing transcript clearly shows that Complainant was given ample opportunity to cross-examine the Agency's witnesses. Accordingly, we find that that the AJ's failure to inform Complainant that she may do so does not establish that the AJ abused her discretion.
Complainant contends that the AJ erred when she did not allow her to ask questions regarding the PM converting individuals outside of her protected classes to full-time positions. Nevertheless, we find that the AJ did not err when she limited the questions to the PM to those matters deemed pertinent. Accordingly, we find that the AJ did not abuse her discretion in this regard.
Finally, we note that on appeal, Complainant contends that the AJ interrupted her questioning of the PM, told her after the hearing to "drop the case," and called her "stupid." We note that Complainant alleges that the last two incidents occurred off the record. With regard to the AJ interrupting her questioning, we find that the AJ did not abuse her discretion when she inquired as to how much longer Complainant's questioning would continue. The AJ has the power to regulate the conduct of the hearing and we do not find that asking Complainant about her questions for the PM was an abuse of discretion. We note with regard to the allegation that the AJ told Complainant to drop the case and that she was stupid, Complainant has failed to offer any evidence or testimony to corroborate that these incidents occurred. We note that Complainant did not submit contemporaneous notes or testimony from individuals she may have told about this incident to corroborate her allegations. While these allegations are serious, we find that without any evidence to support Complainant's assertions, we cannot find that these incidents occurred as she alleged.
Harassment/Hostile Work Environment Claim
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to 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 his statutorily protected class; (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) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6 (March 8, 1994).
Here, Complainant asserted that based on her statutorily protected classes, management continuously subjected her to a hostile work environment. We find, however, that Complainant has not shown that she was subjected to a hostile work environment. Complainant has cited numerous incidents where Agency management took actions that appeared to be adverse to her; however, the Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive enough to establish that a hostile work environment occurred. In addition, the Commission finds that Complainant failed to show that any of these incidents were unlawfully motivated by discriminatory or retaliatory animus. The Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
___8/10/12_______________
Date
1 The record reveals that on January 10, 2008, Complainant sought EEO counseling a second time (Agency No. 4J-6300-041-08), and on April 23, 2008, filed a second complaint of discrimination against the Agency. The Agency processed the second complaint and Complainant timely requested a hearing before an EEOC Administrative Judge. Both complaints were consolidated by the AJ and are the claims at issue in this decision.
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0120100570
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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