0120081689
02-18-2011
Marty A. Mia, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Marty A. Mia,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120081689
Agency No. 4J-600-0206-04
DECISION
Complainant filed an appeal from the Agency's January 19, 2008, 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.
The Commission deems the appeal timely and accepts it pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Letter Carrier at the Agency's Palatine Colfax Post Office
facility in Palatine, Illinois. On December 20, 2004, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on
the bases of race (African-American), sex (female), color (black), and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when:1
1. On July 27, 2004, Complainant was called in to the office to
address a grievance;
2. On July 27, 2004, Complainant was treated differently than
another employee in the handling of express mail;
3. On July 30, 2004 and August 20, 2004, Complainant's supervisor
was intimidating and demeaning towards her;
4. On August 12, 2004, Complainant was denied paperwork to see a
doctor;
5. On August 18, 2004, Complainant discovered a flyer in reference
to workman's compensation fraud in her personal post office box;
6. On September 1, 2004, co-workers made racial comments in
Complainant's presence;
7. On September 2, 2004, Complainant discovered spit on the area
of her desk where she works; and
8. Complainant has been subjected to ongoing harassment from July
23, 2004 through October 9, 2004, resulting in being subjected to hostile
work environment.
Previously, in Marty Mia v. U.S. Postal Serv., EEOC Appeal No. 01A52393
(July 18, 2006), the Commission found the Agency improperly dismissed
Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1). The
Commission found that Complainant's complaint stated an overall claim of
harassment based on a hostile work environment theory of discrimination.
The Commission ordered the Agency to resume processing of Complainant's
complaint.
Thereafter, in Marty Mia v. U.S. Postal Serv., EEOC Appeal No. 0120070699
(April 5, 2007), the Commission found the Agency improperly dismissed
Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(3). Therein,
the Commission found that Complainant had not raised an identical claim
of harassment in a civil action filed against the Agency in U.S. District
Court. Again, the Commission ordered the Agency to resume processing
of Complainant's complaint.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
initially requested a hearing. By order dated December 10, 2007, the AJ
granted Complainant's motion to withdraw her complaint from the hearing
process. Order Granting Complainant's Motion to Withdraw Request for
Hearing, December 10, 2007; Record on Appeal (ROA) at 70. In accordance
with Complainant's request, the Agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that with respect to incidents
(1), (2), (3), (4) and (8) that Complainant did not identify any
similarly situated employees who were treated better than she was
under similar circumstances. On the contrary, the Agency found that
the Agency officials identified by Complainant as responsible for the
discrimination, believed that had any of the employees Complainant
identified for comparison, behaved in a similar fashion, they too would
have been treated as Complainant was treated. Additionally, the Agency
noted that Complainant was called into her supervisor's office to address
a grievance (incident (1)). The Agency found this allegation was an
attempt by Complainant to lodge a collateral attack on the Agency's
negotiated grievance process, and as such, does not state a claim.
Agency Final Decision (Ag Decision), January 19, 2008, at 11, 12.
Regarding incident (6), the Agency found that the single use of a racial
epithet under the circumstances described by Complainant in her complaint
was not sufficiently severe or pervasive to establish a racially hostile
work environment. Significantly, the Agency noted that Complainant had
approached a co-worker who was spelling "N-i-g-g-e-r", indicating that the
racially charged comments were not directed at Complainant. Id. at 12.
With respect to the remaining allegations, and Complainant's overall
claim of harassment, the Agency found that Complainant failed to show
that her race, or sex2 were determining factors in any of the Agency's
actions about which Complainant complains, nor that Complainant presented
any evidence from which an inference of discrimination could be drawn.
Id. at 13.
With respect to Complainant's complaint insofar as it alleges
discrimination based on reprisal, the Agency found that Complainant
did not establish a prima facie case of discrimination. Specifically,
the Agency found that Complainant suffered no direct loss as a result of
the alleged discrimination, nor did she present evidence that the Agency
actions were motivated by reprisal. Additionally, because the incidents
described in her complaint were not sufficiently severe or pervasive to
rise to the level of harassment, the Agency found that Complainant did
not prove that she was subjected to discrimination based on reprisal.
Id. at 14.
Even if Complainant had established a prima facie case of harassment
on any basis, the Agency found the identified Agency officials provided
legitimate, non-discrimination reasons for specific incidents cited in
the complaint.
For example, Complainant identified four Agency supervisory officials
as responsible for creating a hostile work environment. One identified
official, S1, a Postmaster, was not in the Palatine Post Office during
the time period of the alleged discriminatory events. Id. at 18.
Another official, S2, stated that he did not witness nor did Complainant
report to him the incident described in (6) herein. Further, S3, still
another identified Agency official, also denies treating Complainant
differently and states that the operational decisions about which
Complainant complains (including incidents (1), (2), (3) and (8)),
are based on non-discriminatory factors, such as employee duties and
responsibilities and the needs of the service. Id. at 17, 18. S4,
yet another Agency official identified in the complaint states that
Complainant was denied authorization to see a specific physician, P1,
because that physician was not Complainant's treating physician (incident
(4)). However, S4 explained that after Complainant obtained a referral
to P1, Complainant was allowed to see P1. Id. at 18. The Agency found
that Complainant presented no evidence to show that the explanations
provided by S1, S2, S3 and S4 were pretext to mask discrimination.
The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination on any basis as alleged. Id. at 19.
On appeal, Complainant admits that she pursued relief through the EEO
process when the Agency failed to process her grievance. Complainant's
Brief on Appeal, March 25, 2008, at 4. She further challenges the
factual accounts offered by the Agency's witnesses, stating that she has
complained numerous times about being harassed during her employment by
the Agency, while other employees were not similarly harassed. See,
e.g. Id. at 3, 4, et seq. Complainant submits additional narrative
documents in which she further explains the incidents of harassment
cited in her complaint, as well as additional background information
pertaining to her prior complaints. Id.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
In the instant case, we find the evidence supports the Agency's Final
Decision. We find that the incidents alleged in the complaint involving
the investigation of a grievance (1), express mail (2), authorization to
see a physician (4), and a flyer placed in her post office box (5), even
if they occurred as Complainant has alleged, are neither sufficiently
severe nor pervasive to state a claim of harassment either alone or
viewed in conjunction with the remaining incidents.
We find that a preponderance of the evidence does not show that the
racially charged comments described in incident (6) were directed at
Complainant and occurred in a manner so objectively offensive as to
alter the terms and conditions of Complainant's employment. Rather,
the evidence indicates that Complainant was an unintended witness
to a discussion between a small group of employees and that the
offensive term being spelled out was neither directed at Complainant,
nor expressed in an intentionally offensive manner. Complainant's EEO
Investigative Affidavit, June 8, 2007; Record on Appeal at 326. We
find this isolated event did not have the effect of creating a hostile
work environment either by itself or when viewed in the context of
Complainant's other allegations. Similarly, we find the evidence
surrounding incident described in (7), does not show how this incident
is related to Complainant's protected groups. While clearly unwelcome
and offensive, we find nothing in the record connecting this isolated
incident to Complainant's sex, race, color, or prior EEO activity.
We note that Complainant's extensive narrative descriptions of ongoing
harassment are uncorroborated by any witness statements or other
objective documentation in the report of investigation or in the record
on appeal. We observe that a significant number, if not the majority,
of the chronological events Complainant includes in her descriptions of
alleged harassment are ordinary workplace events involving Complainant's
duties and the Agency's efforts to supervise Complainant's conduct and
performance. See Complainant's Brief on Appeal, supra. We note that the
investigative record of such occurrences is void of any corroborating
evidence that such occurrences were motivated by discriminatory factors.
CONCLUSION
We AFFIRM the Agency's Final Decision, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 18, 2011
__________________
Date
1 Complainant initially alleged discrimination based on disability.
In her investigative affidavit, dated June 8, 2007, Complainant clarified
that she was not alleging disability discrimination.
2 We note that the Agency did not include color among Complainant's
bases of alleged discrimination though this basis is evident on the
face of Complainant's complaint and the record does not indicate
that Complainant specifically abandoned or withdrew this basis at
any point. See EEO Complaint of Discrimination in the Postal Service,
Case No. 4J-60-0206-04, December 19, 2004 at 1. Nevertheless, the record
is sufficient to adjudicate the basis of color in this decision.
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0120081689
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081689