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

Equal Employment Opportunity CommissionMay 8, 2007
0120063668 (E.E.O.C. May. 8, 2007)

0120063668

05-08-2007

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


Marjory Lofts,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 01200636681

Agency No. 4H-335-0145-05

DECISION

On May 24, 2006, complainant filed an appeal from the agency's May 2,

2006, final decision concerning her equal employment opportunity (EEO)

complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is deemed timely and is accepted for de novo review by the

Commission, pursuant to 29 C.F.R. � 1614.405(a). For the following

reasons, the Commission AFFIRMS the agency's final decision.

At the time of events giving rise to this complaint, complainant worked

as a City Carrier at the Braden River Post Office, in Bradenton, Florida.

On November 3, 2005, complainant filed an EEO complaint alleging that

she was discriminated against on the bases of sex (female), disability,

age (D.O.B. 04/30/53), and in reprisal for prior protected EEO activity

(arising under the Rehabilitation Act) when, during August 2005, she was

subjected to a hostile work environment as a result of her supervisor's

actions of reprimanding her on several occasions for not completing

her route by 5:00 p.m.; insisting that she work more than 8 hours;

making false accusations about her; swearing at her; attempting to

turn co-workers against her; watching her work on her route; requiring

her to violate her working restrictions; and making comments such as,

"I'm picking on you for asking too many questions" and "If it will take

a push from me to make her leave again, I am up to the job."

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b). The decision concluded that complainant failed to prove

that she was subjected to discrimination as alleged.

In the FAD, the agency found that complainant did not show that the

alleged harassment was severe or pervasive, or that it was based on

her membership in a protected group. The FAD also reiterated that it

had dismissed certain additional claims which complainant had raised in

her formal complaint.2 On appeal, complainant raises no new arguments.

The agency requests that we affirm the FAD.

Based on the standards set forth in Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993), in order to prevail on a claim of harassment,

complainant must prove that: (1) she was subjected to harassment that

was sufficiently severe or pervasive to alter the terms or conditions

of employment and create an abusive or hostile environment; and (2) the

harassment was based on her membership in a protected class. See EEOC

Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris

v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). Assuming arguendo that

complainant is an individual with a disability, the evidence in the

record is insufficient to support a finding that management's actions

towards complainant were based on her membership in a protected class.

See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on

Harris v. Forklift Systems, Inc. at 3, 6.

Briefly, we address complainant's allegation that management violated

her medical restrictions. Complainant states that in November 2002,

her doctors required that she not be placed in a hostile environment.

She also states that her doctors have required an 8-hour medical

restriction as well as her being allowed frequent blood sugar testing and

being able to eat and or inject insulin. The agency asserts however, that

the only evidence concerning medical limitations offered by complainant

is that she should take a break every two hours to check her blood sugar

or to administer medication if necessary. The agency contends that she

was permitted to do this. The supervisor stated that he never observed

complainant testing her blood sugar, and the one time he ordered her back

to her case when she was eating, she had left her case without permission

and outside the time set for her break. Management asserts that if

complainant could not work more than 8 hours in a day, she would need to

have provided medical evidence to support the need for the restriction,

which she did not do. Although complainant states that in 2002, she had

doctor's orders not to work more than 8 hours in a day, the record does

not contain any indication that this restriction still applied during

the time period in question and/or that she requested and was refused an

8 hour schedule as a reasonable accommodation within the meaning of the

Rehabilitation Act. Accordingly, after a careful review of the record,

we AFFIRM the FAD.

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

May 8, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 Complainant raised additional claims which the agency initially

dismissed by letter dated November 30, 2005, for failure to state a claim.

Since complainant does not on appeal, challenge the dismissal of these

claims, they will not be addressed herein.

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0120063668

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120063668