01991033
06-19-2002
Marcia L. Katt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Marcia L. Katt v. United States Postal Service
01991033
June 19, 2002
.
Marcia L. Katt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01991033
Agency No. 1-D-284-1020-95
Hearing No. 140-96-8224X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges that she was discriminated against on
the bases of race (White), sex (female) and age (DOB: 12/26/51) when:
(1) on April 23, 1995, her request for eight hours of sick leave for
April 25, 1995, was denied;
on April 24, 1995, she was required to provide a doctor's note for the
sick leave request of April 25, 1995;
on April 26, 1995, and April 30, 1995, she was informed that her absence
of April 25, 1995, would be charged as Absent Without Leave (AWOL);
on April 26, 1995, her request to meet with a union steward was denied;
on April 30, 1995, her request for a copy of the PS Form 3971, Request
for Notification of Absence, for the April 25, 1995 absence was denied;
and,
on April 30, 1995, she was approached in a condescending manner by her
supervisor (S1), as if he was going to strike her, and then S1 asked
if her working overtime �pissed her off.�
For the following reasons, the Commission REVERSES the agency's final
decision.
The record reveals that during the relevant period, complainant was
employed as a PS-5, Flat Sorter Machine Operator at the agency's
Processing and Distribution Center in Fayetteville, North Carolina.
The record reflects that on April 23, 1995, complainant submitted a
leave slip for eight hours of sick leave on April 25, 1995, to cover
an appointment with her physician. S1 instructed complainant to submit
documentation if she wanted the leave marked as scheduled. Complainant
obtained documentation from her physician and submitted it to S1 when she
arrived at work on April 24, 1995. In addition to denying complainant's
leave request, S1 did not give her a copy of the leave slip.
The record also reflects that complainant kept her doctor's appointment
and did not report to work on April 25, 1995. When complainant
reported to work on the following day, S1 informed her that she would
be charged AWOL. Complainant also contends that on April 30, 1995,
S1 approached her in a threatening and intimidating manner. On May 2,
1995, complainant's father died and she went to Pennsylvania for a week.
Complainant contends that, upon her return, the harassment by S1 stopped.
On June 5, 1995, complainant sought EEO counseling and subsequently,
filed a formal EEO complaint with the agency on November 29, 1995,
alleging that the agency had discriminated against her as referenced
above. 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 race and sex discrimination, but no age discrimination.
The AJ concluded that complainant was subjected to a hostile working
environment based on her race and sex. Specifically, the AJ found that
complainant was a member of protected groups based on her race, age,
and sex. The AJ also found that S1 created an abusive and hostile
working environment because he led complainant to believe that she
would be charged AWOL for her absence of April 25, 1995, even though he
knew that it was not true. The AJ also noted testimony by complainant's
husband to the effect that on various dates, he overheard S1 make comments
such as being �tired of White people,� discussing setting up a �White
a-- supervisor,� and boasting about how he �pissed off this old White
b----� and that �the only thing that saved the old White b---- was she
had to take leave because her daddy died.� S1 testified regarding the
reasons for his actions and denying the comments noted above, but the
AJ found that his testimony was conflicting, evasive and altogether not
credible. While noting that one of S1's comments included a reference
to complainant's age, the AJ found that the evidence established that S1
harbored an animus against Whites and females, but did not establish an
animus based on age. In summary, the AJ found that complainant alleged
and proved a general claim of harassment/hostile work environment based
on race and sex.
As relief, the AJ ordered that the agency that the agency take appropriate
preventative steps to ensure that no employee is harassed, provide
training to S1, ensure that complainant is not required to work for S1,
and post a notice.
The agency's final decision adopted the AJ's finding of no
age discrimination, but rejected the AJ's finding of race and
sex discrimination. Reviewing each of the allegations separately,
the agency found that complainant failed to state a claim because she
did not show that some direct personal deprivation, loss or harm with
respect to a term, condition or privilege of employment as a result of
S1's actions. Reviewing the allegations as a whole, the agency found
that complainant merely objected to several alleged incidents which
occurred within a five (5) day period and that no reasonable person would
conclude that such incidents were sufficiently severe or pervasive so
as to alter the condition of her employment. The agency also found that
complainant failed to establish a prima facie case of disparate treatment
discrimination on any basis, inasmuch as she failed to establish that
there was any similarly situated comparator who was more favorably
treated or the evidence established that similarly situated employees
�within and outside of [her] protected groups were treated similarly.�
Accordingly, the agency found that the evidence did not support the
AJ's conclusion that S1 �harasses White females.� While noting that
an AJ's credibility determinations are accorded deference, the agency
found that it was �not only incredulous ... but also preposterous that
on four (4) separate occasions ... complainant's spouse and his friend
... conveniently overheard [S1] make discriminatory remarks.�
It is from this decision that complainant appeals and argues that the
AJ's decision was correct. In its comments on the appeal, the agency
summarily asserts that the appeal should be denied for the reasons set
forth in the FAD.
Complainant also argues that the agency failed to reject the AJ's decision
within sixty (60) days, as required by the applicable regulation at the
time in question, which provided that an AJ's decision became final and
binding on an agency unless the agency issued its FAD within sixty (60)
days of receipt. Complainant obtained from the AJ a copy of a certified
return receipt establishing that the agency received the AJ's decision on
August 6, 1998. Accordingly, the AJ's decision would have become final
and binding on the agency unless it issued its FAD on or before Monday,
October 5, 1998. Complainant points out that it appears that a date was
�whited-out' on the original FAD, and the date �05 OCT 1998" was stamped
above that area. Complainant maintains that she can see an �8" in the
�whited-out' area. More significantly, the envelopes containing the FAD
and addressed to complainant and her representative are both postmarked
October 8, 1998. Inasmuch as a document is �deemed timely if it is
received or postmarked before the expiration of the applicable filing
period,� we find that the agency did not timely reject and, therefore,
is bound by the AJ's decision. 29 C.F.R. � 1614.604(b).
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, the Commission REVERSES the
agency's final order which rejected the AJ's finding of discrimination.
The agency is ordered to take remedial actions in accordance with this
decision and the ORDER below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
The agency is directed to provide training to its responsible management
and supervisory employees at the Processing and Distribution Center to
sensitize them to the issue of discrimination in the workplace, and to
apprise them of their responsibilities as federal management officials
to adhere to EEO laws and to provide equal opportunities to all employees
regardless of race and sex.
The agency is directed to take appropriate preventative steps to ensure
that no employee is subjected to any form of harassment in the future
and to ensure that, hence forth, appropriate steps are taken immediately
after management is notified of such behavior.
The agency is also directed to ensure that S1 no longer supervises
complainant.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Processing and Distribution Center
facility in Fayetteville, North Carolina, copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
June 19, 2002
__________________
Date