01A40406
07-14-2004
Linda J. Howell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda J. Howell v. United States Postal Service
01A40406
07-14-04
.
Linda J. Howell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40406
Agency No. 4E-500-0017-02
Hearing No. 260-A3-9082
DECISION
INTRODUCTION
On April 16, 2002, complainant filed a timely formal complaint of
discrimination alleging that she was subjected to unlawful discrimination
on the basis of her race (Caucasian) and/or reprisal (Prior EEO
activity) in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
On September 17, 2003 the agency accepted and fully implemented the
AJ's decision. Complainant filed the instant appeal on October 15, 2003.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether complainant was subjected to discrimination
because of her race (Caucasian) and/or reprisal (Prior EEO activity) when:
On September 8, 2000 a co-worker (C1) told complainant that her husband
made him late for work;
In October 2002, complainant discovered her missing tennis shoes in
the garbage and alleged that �people� came up to her at work and told
her that her hair was ugly;
In November through December 2000, �different people at work� asked
her why her boyfriend was driving her truck;
In January 2001, a co-worker (C2) made statements to another colleague
downplaying the abilities of African-American athletes and that he
would rather be married to a white woman and have a white wife;
On January 23, 2001, a co-worker (C3) called complainant a �f - - -
ing [expletive] psycho;�
On February 15, 2001, complainant's postal vehicle was not in the
parking lot, and complainant alleged that someone was purposely hiding
her postal truck;
In March 2001, C2 made statements to his colleague downplaying black
people;
On April 11, 2001, complainant heard C2 say �black brother;�
On April 18, 2001, complainant found a note on her desk attached to a
Request for Transfer slip that said, �Get out of here;� and
On January 5, 2002 a co-worker (C4) told complainant �Don't forget
your medicine.�
BACKGROUND
At the time of her complaint, complainant was employed as a Letter
Carrier Floater at the agency's South Des Moines facility. A �floater�
is an employee who moves to different routes and cases, depending upon
where she is needed.
Beginning in September 2000, complainant alleges that she began to
continually experience incidents which she believed were directed at
her because she was dating and later married an African-American male.
Complainant filed a formal EEO complaint on April 16, 2002. Complainant
also asserts that from April 23 through June 2001, she was on leave due
to surgery and during this leave she had gotten married. Upon her return,
complainant alleges that �people� with whom she worked were using her last
name and purposely not using her new married name when referring to her.
The agency conducted an investigation into complainant's allegations and
provided complainant with a copy of the investigative report. Complainant
then requested a hearing before an AJ. The hearing was held on August 5
and August 22, 2003, and the AJ issued a bench decision on August 25, 2003
finding that complainant was not subjected to a hostile work environment
based on race and reprisal. Specifically, the AJ determined that the
incidents presented by complainant as harassment were not sufficiently
severe or pervasive to create an abusive work environment under the
law, and no evidence had been presented to establish a link between
complainant's race and the alleged harassment.
The agency's final decision (FAD), issued on September 17, 2003, found
that the AJ's decision was factually and legally correct and, therefore,
fully implemented the AJ's decision. Complainant timely initiated an
appeal from the agency's FAD on October 15, 2003.
On appeal, complainant restates arguments previously made at the hearing.
She also reiterates that the hostile environment caused her to seek
treatment from a psychiatrist. In response, the agency restates the
position it took in its FAD, and requests that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Throughout the record, complainant alleged that she was subjected to
a hostile work environment (harassment) because of her race and/or
reprisal and because her of involvement in an interracial relationship
and marriage. A number of courts have determined that when an employee
suffers an adverse action, such as harassment, because she is involved in
an interracial relationship, the employee has a claim under Title VII.
Santee v. Department of Veterans Affairs, EEOC Appeal No. 01900944
(October 23, 1990); Deffenbaugh-WIlliams v. Wal-Mart Stores, Inc.,
156 F.3d 581, 589 (5th Cir. 1998).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including 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 v. Forklift Systems, 510 U.S. 17 (1993).
To establish a prima facie case of hostile environment/harassment,
a complainant must show that: (1) she is a member of a statutorily
protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the 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. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
In determining whether or not a hostile environment violates Title VII,
Commission regulations require that "... the challenged conduct must
not only be sufficiently severe or pervasive objectively to offend a
reasonable person, but also must be subjectively perceived as abusive
by the charging party." See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 at 7 (March 8, 1994). See also
EEOC Compliance Manual, Section 2, Threshold Issues, at 2-18, n.50.
In Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) the Supreme
Court noted: "simple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory changes in
the 'terms and conditions of employment'."
Here, the incidents presented by complainant as evidence of harassment
are not sufficiently severe or pervasive to create an abusive work
environment under Title VII. While the incidents and statements alleged
by complainant may be unpleasant or inappropriate, Title VII is not a
general civility code and only prohibits harassment that is so objectively
offensive as to alter the conditions of the complainant's employment.
Oncale v. Sundowner Offshore Servs., Inc., 423 U.S. 75, 80-81 (1998).
Furthermore, there is no evidence in the record that any of these remarks
or incidents were directed at complainant because of a protected basis.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity.
We discern no basis to disturb the AJ's decision.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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
___07-14-04_______________
Date