01A42690
07-01-2004
Kimberly A. Frost, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Kimberly A. Frost v. United States Postal Service
01A42690
July 1, 2004
.
Kimberly A. Frost,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A42690
Agency No. 4H-335-0240-02
Hearing No. 150-A2003-09516
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency had discriminated against her on the
bases of sex (female), in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., on the basis
of disability, in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and in
reprisal for prior EEO activity [arising under Title VII] when, on August
5, 2002, her work assignment was changed and given to another employee.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision, without a hearing,
finding no discrimination.
The AJ found that complainant failed to establish a prima facie case of
reprisal discrimination. The AJ additionally found that complainant
failed to establish a prima facie case of disability discrimination
because she did not establish that she was a qualified individual with
a disability. The AJ then found that complainant offered no evidence
to support her claim that she was discriminated against because of any
of the protected bases when on August 5, 2002, her work assignment was
changed and given to another employee. Finally, the AJ found that the
record contains no disputed genuine issues of material fact. The agency's
final order implemented the AJ's decision.
On appeal, complainant contends that this case concerns not just the
single above-cited incident regarding a work assignment, but also
approximately ten years of constant harassment by her co-workers.
Complainant contends on appeal that such harassment includes the
�vandalism of 3 vehicles,� and �personal acts of violence in which [her]
name was cut out of a calendar in the break room with a razor knife.�<1>
Complainant contends that she has reported the harassment to management,
however, management has failed to correct it. The agency requests that
we affirm the final order.
As an initial matter we find that the AJ erred in failing to consider more
than a single incident of harassment. Although complainant was given an
opportunity to dispute the agency's framing of the issue, and the record
is devoid of evidence that she took advantage of that opportunity, it is
nonetheless clear that complainant's claim comprises more than merely
the single incident of a changed work assignment on August 5, 2002.
Complainant's claim is that she has been subjected, more broadly, to
ongoing harassment for many years by several of her co-workers. Not only
does complainant describe such harassment numerous times throughout the
record, but the record also contains testimony from other individuals in
which they specifically address complainant's allegation of an ongoing
hostile work environment. Therefore, we will not limit our review to
the single incident of work assignment, but will address complainant's
claim as an allegation of discrimination when complainant was subjected
to ongoing hostile work environment harassment, comprising numerous
incidents, on the bases of sex, disability and reprisal.
Here, although it is clear that complainant's work environment was
made extremely unpleasant and/or abusive due to the conduct of several
other employees, complainant has not set forth any evidence from which
a reasonable fact-finder could conclude that the alleged harassment was
motivated by complainant's membership in one of the alleged protected
groups.<2> 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. In so finding, we note that assuming, arguendo, that complainant
is an individual with a disability pursuant to the Rehabilitation Act,
a decision without a hearing was appropriate and a preponderance of the
record evidence does not establish that discrimination occurred.
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
July 1, 2004
__________________
Date
1 A review of the record reveals additional incidents of alleged
harassment cited by complainant; namely, a co-worker screaming at her
for not making another pot of coffee; a co-worker crossing the room
to walk in her path, and brushing up against her; co-workers refusing
to speak to complainant; and, a �bully�-type co-worker walking around
behind her and snipping scissors behind her back, and pushing flats off
the top rack onto her head. See ROI, at Ex. 3
2 It appears that the harassment may have been based on other factors
such as personal differences between complainant and her co-workers.
For instance, we note the testimony if a former co-worker of complainant
who stated �This is why I believe that [complainant] had the problems
worse than others. She is young and full of energy. She took pride
in her job. This was being a do gooder in the union steward's eyes.�
Report of Investigation, at Ex. 3.