0120102739
10-28-2011
Joyce Y. Smith, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Joyce Y. Smith,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120102739
Hearing No. 560-2009-00209X
Agency No. 4E-640-0016-09
DECISION
On June 8, 2010, Complainant filed an appeal from the Agency’s May 5,
2010 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 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 for de novo review
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
in a limited duty position at the Agency’s Processing & Distribution
Center in Kansas City, Missouri. In July 2008, the District Reasonable
Accommodation Committee (DRAC) requested that she submit medical
documentation because her supervisor had brought to the DRAC’s
attention that Complainant was unable to perform all of the essential
functions of her limited duty position on Tour Two in the CFS unit.
The DRAC also held a meeting with Complainant. Complainant declined
to cooperate, stating that her restrictions were permanent and arguing
that she was able to perform her bid position on Tour Two. In response,
the Agency identified a position on Tour One in unit 035 and transferred
Complainant to it in December 2008. Within weeks, Complainant submitted
changed restrictions and successfully rebid on a Tour Two position in
the CFS unit. Once back in the CFS Unit, Complainant alleged that the
same supervisor harassed her.
On November 6, 2009, Complainant filed and subsequently amended an EEO
complaint alleging that the Agency discriminated against her on the
bases of race (African-American), sex (female), disability, age (50),
and in reprisal for prior protected EEO activity when in December 2008,
she was reassigned to Tour One in the 035 unit. She also alleged she
was subjected to retaliatory harassment when: she has been subjected to
outbursts and spoken to in a demeaning tone; she was not been properly
paid for January 6, 2009; on January 16, 2009, she was denied a schedule
change; on February 7, 2009, she was denied annual leave; on February
10, 2009, her documentation was deemed insufficient; on February 14,
2009, appropriate action was not taken when a co-worker yelled at her,
and her name was not on the list to work the President's Day holiday.1
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing but the AJ denied the hearing request as a sanction
for Complainant’s refusal to cooperate with the Agency’s discovery
requests. The AJ remanded the complaint to the Agency, and the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The final
decision found that Complainant failed to prove that management’s
legitimate and non discriminatory explanations for what transpired were
a pretext for unlawful discrimination. From that decision, Complainant
brings the instant appeal.
ANALYSIS AND FINDINGS
With regard to the reassignment, we find Complainant’s testimony as
to whether she could perform the essential function of her Tour Two
position inconsistent insofar as she admits there were things she could
not do. We also note that she was able to get her restrictions changed
so that she could perform all of the duties on Tour Two despite having
communicated to the DRAC that her restrictions were permanent. We are
not persuaded that the Agency’s decision to reassign Complainant to
Tour One, an assignment which ultimately lasted less than four weeks,
was discriminatory.
With regard to the claim of harassment, complainant must establish that
she was subjected to conduct that was either so severe or so pervasive
that a “reasonable person” in complainant’s position would have
found the conduct to be hostile or abusive. Complainant must also prove
that the action was taken because of a protected basis, i.e. in this
case, her prior protected activity. Only if complainant establishes
both of those elements, does the question of vicarious liability for
supervisory harassment present itself.
Having reviewed the record, we are not persuaded that the conduct of
which Complainant complains was taken in retaliation for her prior
protected activity. In reaching this conclusion, we note the testimony
of Complainant’s coworker attesting to the poor relationship between
Complainant and S1. However, this coworker stated that she could not
say the acrimony was based on anything specific, only that S1 appeared to
favor employees with less seniority. Sufficient explanations relating
to operational efficiency were given with respect to each of the alleged
incidents, and Complainant offers no persuasive evidence to undermine
the credibility of those explanations. For these reasons, her claim of
retaliatory harassment fails.
CONCLUSION
Based on a thorough review of the record and for the reasons set forth
above, we AFFIRM the Agency’s final decision.
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
October 28, 2011
__________________
Date
1 The Agency dismissed claims relating to her requests for a union
steward either being ignored or not honored.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120102739
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120102739