01970307
03-05-1999
Louise Frage, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Northeast/N.Y. Metro Area), Agency.
Louise Frage v. United States Postal Service
01970307
March 5, 1999
Louise Frage, )
Appellant, )
)
v. ) Appeal No. 01970307
) Agency Nos. 4A-117-1017-94
) 4A-117-1043-94
) 4A-117-1069-94
) 4A-117-1089-94
) 4A-117-1104-95
William J. Henderson, ) Hearing Nos. 160-95-8064X
Postmaster General, ) 160-95-8586X
United States Postal Service ) 160-05-8587X
(Northeast/N.Y. Metro Area), ) 160-95-8338X
Agency. ) 160-95-8339X
)
DECISION
Appellant timely appealed the final decision of the United States Postal
Service (agency), concerning her complaint alleging that the agency
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq. and Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001. For the reasons stated below we affirm the
final agency decision.
Appellant filed formal complaints alleging the following:
Agency Case No. 4A-117-1104-95
The agency subjected her to continuous discriminatory harassment on
the bases of her sex (female), mental disability (job-related stress)
and prior EEO activity when, (1) she was not made a Regular Clerk; (2)
she was issued a Letter of Warning (LOW) dated June 29, 1994; and (3)
her supervisor followed her to the ladies' room on June 22, 1994.
Agency Case No. 4A-117-1089-94
The agency subjected her to continuous discriminatory harassment on the
bases of her sex (female) and reprisal (prior EEO activity) when, (1)
she was given a heavier workload; (2) she was subjected to verbal abuse;
and (3) other employees were allowed more work hours.
Agency Case No. 4A-117-1017-94<1>
The agency subjected her to continuous discriminatory harassment
(November 17, 1993 until May 4, 1994) on the bases of her sex (female),
national origin (Polish-Italian), mental disability (job-related stress),
and reprisal (prior EEO activity) when, (1) none of her job-related
questions were answered; (2) other employees were given better days off,
and time off when requested; (3) she was given a scheme to learn largely
on her own time; (4) she was called "honey" by her supervisor; and (5)
she was given an Official Discussion on November 22, 1993.
Following the agency's investigation of her complaint, appellant
requested a hearing with an EEOC administrative judge (AJ). A hearing
was held on October 11, 1995, and February 5, 1996. The AJ issued a
recommended decision (RD), finding no discrimination on September 3,
1996. Subsequently, the agency adopted the AJ's recommended decision
in a final agency decision dated September 10, 1996.
In his recommended decision, the AJ analyzed appellant's complaints as
disparate treatment claims and also provided an analysis for appellant's
"continuous discriminatory harassment theory." The AJ essentially found
that appellant failed to prove the merits on each of her allegations.
He further concluded that the alleged acts did not constitute continuous
discriminatory harassment. The AJ reached his findings of fact and
conclusions of law by considering the totality of evidence and by making
specific credibility findings all of which were in favor of agency
witnesses.
After a careful review of the entire record, including appellant's
statement on appeal, and arguments and evidence not specifically addressed
in this decision, the Commission finds that the AJ's recommended decision
properly analyzed appellant's complaint as a disparate treatment claim.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also
Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253-56 (1981); Wrenn v. Gould, 808 F.2d 493, 500 (D.C. Cir. 1987)
(applying the McDonnell Douglas standard to reprisal cases); and
Oberg v. Secretary of the Navy, EEOC Request No. 05890451 (July 20,
1989)(applying the McDonnell Douglas standard to disability discrimination
based on disparate treatment). The Commission concludes that, in all
material respects, the AJ accurately set forth the facts giving rise
to the complaint and the law applicable to the case. We further find
that we are in agreement with the AJ's holding that appellant failed to
prove the merits of her claim. Therefore, considering a preponderance
of the evidence, we agree with the AJ's finding that appellant failed
to show, that the agency subjected her to continuous discriminatory
harassment. We acknowledge appellant's arguments presented on appeal,
however, her arguments essentially raise contentions concerning the AJ's
credibility findings. The Commission has held that "an AJ's credibility
determination are entitled to deference due to the judges' first-hand
knowledge through personal observation of the demeanor and conduct of
the witness at the hearing, however, this deference is not automatic."
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July 26,
1990); Muller v. U.S.P.S., EEOC Request No. 05900634 (October 12, 1990).
The Commission finds the AJ's credibility determinations in the instant
matter are entitled to deference. Therefore, we discern no legal basis
to reverse the AJ's finding of no discrimination. Accordingly, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the final agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction in
which your action would be filed. 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 (Z1092)
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:
March 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Agency Case Nos. 4A-117-1043-94 and 4A-117-1069-94 were consolidated
under Agency Case No. 4A-117-1017-94.