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