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.