Lang Tran, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionDec 4, 2001
01994166 (E.E.O.C. Dec. 4, 2001)

01994166

12-04-2001

Lang Tran, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.


Lang Tran v. United States Postal Service

01994166

December 4, 2001

.

Lang Tran,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 01994166

Agency No. 1-H-336-0129-98

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful 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.; the Age Discrimination in Employment

Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and Section 501

of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. �

1614.405. Complainant alleged that she was discriminated against on

the bases of race (Asian), sex (female), national origin (Vietnamese),

age (over 40), disability, and reprisal (prior EEO activity), when she

was subjected to a hostile environment by a co-worker and a supervisor.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Modified Clerk at the agency's Tampa, Florida, Processing and

Distribution facility. Believing she was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on September 19, 1998. At the conclusion of the investigation,

complainant was informed of her right to request a hearing before an

EEOC Administrative Judge or alternatively to receive a final

decision by the agency. When complainant failed to respond within the

time period specified in 29 C.F.R. � 1614.108(f), the agency issued a

final decision.

Complainant alleged, in her complaint, that Employee R (male) and

Supervisor J (African American, male, over 40) harassed her. The FAD

focused only on Employee R's alleged harassment. Thus, the FAD noted

that on April 29, 1998, Employee R allegedly commented that complainant

had been seen in an oriental restaurant carrying dishes and on another

occasion he had commented that the splints she was wearing were not

helpful to her injury. Complainant asserted that these comments were

discriminatory and were made with the intention of getting her fired

since it was known that the severity of her restrictions (due to carpel

tunnel syndrome) prevented her from lifting a tray of mail.<2> According

to the FAD, complainant stated that by allowing Employee R to make these

comments, management violated her civil rights.

In its FAD, the agency concluded that complainant failed to satisfy her

initial burden of establishing a prima facie case of discrimination based

on her race, sex, national origin, age, disability, or reprisal. The FAD

noted that complainant had not shown she was treated differently than

similarly situated persons who were not members of her protected group.

In addition, the FAD found that the record was completely devoid of

evidence or corroborating testimony to show that the alleged harassment

was sufficiently severe or pervasive as to unreasonably interfere with

her work performance or create an intimidating, hostile, or offensive

working environment. Finally, the FAD found that complainant did not

show pretext for prohibited discrimination, and that the agency was

unpersuaded that management's failure to act in the manner complainant

deemed appropriate was motivated by unlawful discrimination.

Complainant appealed and focuses on Supervisor J's handling of an

allegation of harassment made by Employee R and another employee against

complainant, where Supervisor J conducted an investigation.<3> The

appeal consists of a statement prepared in connection with a grievance

proceeding, alleging that on November 7, 1997, Supervisor J allegedly

placed complainant in an unsafe and discriminatory atmosphere while

on duty, involving Employee R's and the other employee's allegation of

harassment. In the grievance, complainant also alleged discriminatory

remarks by Employee R based �solely due to her national origin.� The

Commission now addresses complainant's concerns on appeal.

ANALYSIS AND FINDINGS

Hostile Work Environment

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.

Consistent with the Commission's policy and practice of determining

whether a complainant's harassment claims are sufficient to state a

hostile or abusive work environment claim, the Commission has repeatedly

found that claims of a few isolated incidents of alleged harassment

usually are not sufficient to state a harassment claim. See Phillips

v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Health and Human Services, EEOC Request No. 05940481

(February 16, 1995). Moreover, the Commission has repeatedly found that

remarks or comments unaccompanied by a concrete agency action usually are

not a direct and personal deprivation sufficient to render an individual

aggrieved for the purposes of Title VII. See Backo v. United States

Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United

States Postal Service, EEOC Request No. 05940695 (February 9, 1995).

In determining whether an objectively hostile or abusive work environment

existed, the trier of fact should consider whether a reasonable

person in the complainant's circumstances would have found the alleged

behavior to be hostile or abusive. Even if harassing conduct produces

no tangible effects, such as psychological injury, a complainant may

assert a Title VII cause of action if the discriminatory conduct was

so severe or pervasive that it created a work environment abusive to

employees because of their race, gender, religion, or national origin.

Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,

1995) (citing Harris, 510 U.S. at 22) req. for recons. den. EEOC Request

No. 05970995 (May 20, 1999). Also, the trier of fact must consider

all of the circumstances, including the following: the frequency of the

discriminatory conduct; its severity; whether it is physically threatening

or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance. Harris, 510 U.S. at 23.

The Commission has had long-standing guidance on employer liability for

harassment by co-workers. An employer is liable if it knew or should have

known of the misconduct, unless it can show that it took immediate and

appropriate corrective action. 29 C.F.R. � 1604.11(d); EEOC Enforcement

Guidance on Vicarious Employer Liability for Unlawful Harassment by

Supervisors, No. 915.002 at 2-3 (June 18, 1999). Vicarious liability

applies to harassment by supervisors. Id. at 3.

On appeal, complainant alleges that Employee R was harassing her on the

basis of her national origin. Complainant does not indicate harassment

by Employee R on any other basis.

Even assuming arguendo that the agency knew of Employee R's conduct,

complainant has not tendered sufficient evidence to justify a finding of

harassment on the basis of her national origin in terms of the Harris

standard. Complainant alleged, on appeal, that Employee R had stated

that she did not deserve to be working at the agency because she was

un-American, and that her demeanor and accent reminded her of Vietnam.

While the first statement is objectionable, the second is not necessarily

objectionable. Complainant did not indicate the frequency of the remarks.

The remarks were not physically threatening. There was no indication that

Employee R unreasonably interfered with her work performance. Indeed,

there is no indication that complainant's work performance was in any

way deficient. Finally, complainant stated that she had been avoiding

Employee R, thus minimizing contact with Employee R.

With respect to Supervisor J, complainant indicates that on October 28,

1997, Supervisor J informed her that Employee R and another employee

complained that she was harassing them, calling them names and cursing

them. On November 7, 1997, Supervisor J requested complainant to be

present at an investigative interview with Employee R. Complainant

requested a shop steward, which request was refused by Supervisor J.

Complainant then requested to go to the medical unit to have her

blood pressure monitored. Supervisor J placed complainant off the

clock, but called her back to go to the medical unit. But see Tran

v. United States Postal Service, EEOC Appeal No. 01994168 (December

2001)(reiterating a slightly different recitation of the facts according

to complainant). Supervisor J also advised her to report to work the next

day at her regular time for the investigative interview. The interview

took place on November 14, 1997, with a shop steward, Supervisor J,

and his supervisor. The investigation found that complainant was not

responsible for any wrong doing, but that she was advised that if there

was another incident both employees would be put out of the building,

i.e., emergency suspension, pending investigation, and subject to

removal. Complainant essentially alleges that Supervisor J fabricated

the allegation and subsequent investigation interview.<4>

Assuming arguendo that complainant established all of her alleged

bases of discrimination, she has not tendered sufficient evidence

to justify a finding of harassment by Supervisor J in terms of the

Harris standard. In her complaint statement, complainant indicated

she did not understand what motivation Supervisor J had to allegedly

fabricate facts to discipline her and put sanctions in her record.

Complaint Statement at 8 (Investigation File at 53). However, the

record indicates that Supervisor J was in the process of investigating

the allegation by Employee R and the other employee. Supervisor J did

not make any findings of harassment by complainant against Employee R.

Indeed, ultimately complainant was found not to have acted as alleged by

Employee R. As a matter of principle, when allegations of harassment

are made by an employee, it is the duty of management to investigate.

Complainant has not proffered any other incidents of alleged harassment by

Supervisor J. Complainant offers no proof that Supervisor J fabricated

the allegation and investigation. Indeed, complainant acknowledges that

there has been friction between Employee R and herself.

Finally, in reviewing the record, we note that complainant made a

number of other serious allegations of harassment (based on race and

national origin) by Employee R. Nevertheless, the record was lacking in

corroborating testimony to show that the alleged harassment (on any basis)

was sufficiently severe or pervasive as to unreasonably interfere with

her work performance or create an intimidating, hostile, or offensive

working environment.

Reprisal

In general, claims alleging reprisal are examined under the tripartite

analysis first enunciated in McDonnell Douglas Corporation v. Green, 411

U.S. 792 (1973). See Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases).

Next, the agency must articulate a legitimate, nondiscriminatory reason

for its action(s). Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981). After the agency has offered the reason for its

action, the burden returns to the complainant to demonstrate, by a

preponderance of the evidence, that the agency's reason was pretextual,

that is, it was not the true reason or the action was influenced by

legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's

Honor Center v. Hicks, 509 U.S. 502 (1993).

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination. Shapiro v. Social Security Admin., EEOC

Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas, 411

U.S. at 802). Specifically, in a reprisal claim, and in accordance

with the burdens set forth in McDonnell Douglas, Hochstadt, and

Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), complainant may establish a prima facie case

of reprisal by showing that: (1) she engaged in a protected activity;

(2) the agency was aware of her protected activity; (3) subsequently,

she was subjected to adverse treatment by the agency; and (4) a nexus

exists between the protected activity and the adverse action. The causal

connection may be shown by evidence that the adverse action followed

the protected activity within such a period of time and in such a manner

that a reprisal motive may be inferred. Simens v. Department of Justice,

EEOC Request No. 05950113 (March 28, 1996) (citations omitted).

The statutory retaliation clauses prohibit any adverse treatment that

is based on a retaliatory motive and is reasonably likely to deter

the charging party or others from engaging in protected activity.

Petty slights and trivial annoyances are not actionable, as they are

not likely to deter protected activity. More significant retaliatory

treatment, however, can be challenged regardless of the level of harm.

As the Ninth Circuit has stated, the degree of harm suffered by the

individual �goes to the issue of damages, not liability.� Hashimoto

v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of

Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) (�the questions of statutory

violation and appropriate statutory remedy are conceptually distinct.

An illegal act of discrimination�whether based on race or some other

factor such as a motive of retaliation � is a wrong in itself under

Title VII, regardless of whether that wrong would warrant an award of

[damages]�). The retaliation provisions set no qualifiers on the term

�to discriminate,� and therefore prohibit any discrimination that is

reasonably likely to deter protected activity. A violation will be found

if an employer retaliates against a worker for engaging in protected

activity through threats, harassment in or out of the workplace, or any

other adverse treatment that is reasonably likely to deter protected

activity by that individual or other employees. EEOC Compliance Manual

on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).

For the reasons that follow, we agree with the FAD that complainant did

not sufficiently set forth a prima facie case of reprisal discrimination.

Although Supervisor J acknowledged that he had heard complainant had

engaged in previous protected activity, complainant failed to show

that a nexus existed between the protected activity and the alleged

adverse action. See also Tran v. USPS, EEOC Appeal No. 01971505 (May

18, 2000) (complaint alleging discrimination based on race (Asian),

sex (female), national origin (Vietnam), age (over 40), and disability

(carpal tunnel syndrome), when she was instructed to report to her regular

job assignment in August 1995) (FAD finding no discrimination affirmed).

The alleged harassment in the present complaint took place well over

one year after the complaint was filed in EEOC Appeal No. 01971505.<5>

Assuming arguendo that complainant was protected under all of her alleged

bases, it appears that none of complainant's previous protected activity

involved Supervisor J.

Moreover, as previously indicated, as a matter of principle, when

allegations of harassment are made by an employee, it is the duty of

management to investigate. Complainant has not proffered any other

incidents of alleged harassment by Supervisor J. Finally, although

Supervisor J requested that complainant be present at an investigative

interview with Employee R and declined complainant's request for a shop

steward, when the investigative interview took place, Employee R was

not present and a shop steward was present. Accordingly, we conclude

that complainant has not shown that the investigation by Supervisor J

was reasonably likely to deter complainant or others from engaging in

protected activity.

CONCLUSION

Therefore, after a careful review of the record, we AFFIRM the FAD.

See also Tran v. United States Postal Service, EEOC Appeal No. 01994168,

supra.

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

December 4, 2001

Date

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2 It appears that complainant was in a modified duty assignment doing

light duty.

3 The record does not indicate whether the alleged harassment was on

a protected basis subject to the Commission's jurisdiction.

4 Complainant's grievance, about Employee R's and the other employee's

allegation, and the ensuing investigation, was settled. Management agreed

inter alia to remove the file on the grieved issue from complainant's

personal file; that any record of the incident would not be used to

show just cause for subsequent discipline; and that management would

enforce a safe working environment by addressing the issue of harassing

and discriminatory remarks.

5 It appears the complaint was filed in September 1995.