0120083272
09-22-2008
Karen Blanks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Karen Blanks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083272
Agency No. 4G-752-0102-07
Hearing No. 450-2007-00368X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 3, 2008 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On February 25, 2007, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against her on
the bases of sex (female) and disability (back, migraines and depression)
when:
1. In January 2007, and February 3, 2007, her starting time was
changed from 7:00 a.m. to 8:00 a.m.;
2. Due to retaliation (instant case) she was harassed since January
2007, regarding her duties and work assignment, transfer to another
station, work status and pay, negative information and confidential
medical documents were provided to her new manager which caused a conflict
between her and her new manager; and
3. On February 12, 2007, she was issued a Letter of Warning (LOW).
The record reveals that complainant is a City Carrier, and works at
the University Station in Dallas, Texas. However, complainant recently
transferred from the Highland Hills Station which is also in Dallas.
Complainant has work restrictions which prohibit her from working more
than eight (8) hours per day. She is also not allowed to work overtime.
Complainant describes her impairments as back pain, migraines and
depression. She indicates that her impairments are temporary and do
not limit any major life activities.
The record reflects that because complainant could not work more than
eight hours she frequently returned mail to the station. In order to
address this issue, she was provided auxiliary assistance. The record
indicates that auxiliary assistance was available to her in the morning,
so complainant's start time was changed from 7:00 a.m. to 8:00 a.m.
After complainant transferred to the University Station, she discovered
that medical documentation regarding her restrictions had been faxed
to her new supervisor and that her work history had been discussed.
Then on February 12, 2007, complainant was issued a LOW for Unacceptable
Performance - Failure to Follow Instructions & Calling Back. The LOW
was issued when on January 31, 2007, complainant requested overtime or
auxiliary assistance to complete her deliveries but used more auxiliary
assistance than was approved, and brought mail back to the station,
which resulted in a delay of First Class Mail. Believing that she had
been discriminated against, complainant filed the instant action.
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ assigned to the case,
issued a decision without a hearing, finding no discrimination. The AJ
found that complainant failed to establish a prima facie case of sex and
disability discrimination or retaliation. Specifically, the AJ found that
the comparators offered by complainant were not similarly situated to her
and, even if arguably they were, complainant failed to show that she was
treated differently than similarly situated individuals outside of her
protected groups. Further, the AJ found that complainant's condition
did not rise to the level of a disability under the Rehabilitation Act
because she failed to show that she was substantially limited in one or
more major life activities.
With regard to complainant's claim of harassment, the AJ found that
complainant failed to allege that any actions that were sufficiently
severe or pervasive enough to establish a hostile work environment.
Notwithstanding the above, the AJ determined that the agency had
articulated legitimate nondiscriminatory reasons for its actions
while complainant had failed to show that the reasons were pretext for
discrimination.
On appeal, complainant contends that the AJ erred when she failed to
hold a hearing regarding these matters. She also maintains that her
comparators were similarly situated and indicates that if all of her
allegations had been considered as a whole, her claim of harassment
would have been established.
Initially, we consider whether the AJ properly issued a decision without
a hearing on this record. The Commission's regulations allow an AJ to
issue a decision without a hearing when s/he finds that there are no
genuine issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003). We find that
the AJ's determination to issue a decision without a hearing (summary
judgment) was appropriate.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
For the sake of analysis only, the Commission assumes arguendo that
complainant established a prima facie case of sex and disability
discrimination. Nevertheless, we still find that the agency articulated
legitimate nondiscriminatory reasons for its actions, namely, that:
(1) complainant's start time was changed because auxiliary assistance
was available at that time; (2) there was no evidence presented that
anything negative was said about complainant and her medical restriction
information was faxed to the new supervisor so that the new supervisor
would be aware of complainant's restrictions; and (3) complainant was
issued the LOW (later reduced to an official discussion), because
her performance resulted in a delay of First Class Mail. We find that
complainant has failed to show that the agency's articulated reasons
are pretext for discrimination.
Further, with respect to complainant's claim of harassment we find
that the incidents taken as a whole are not sufficiently severe
or pervasive to rise to the level of illegal harassment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)
(harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of the complainant's employment). Moreover, we
find that complainant has not shown that the alleged 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.1 See Humphrey
v. United States Postal Service, EEOC Appeal No. 01965238 (October 16,
1998); 29 C.F.R. � 1604.11.
The Administrative Judge's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred. The agency's final notice implementing
the AJ's finding of no discrimination is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
09-22-08
__________________
Date
1 See Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
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0120083272
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083272