0120082476
08-07-2008
Mary L. Wallace, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary L. Wallace,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082476
Agency No. 4J-460-0048-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 31, 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., 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.
During the relevant time, complainant was employed as a City Carrier,
CC-01, at the agency's Munster Branch in Munster, Indiana.
On August 3, 2007, complainant filed the instant formal complaint.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of race (Caucasian), disability
(Diabetic, Carpal tunnel, major depression), age (47) and in reprisal
for prior EEO activity when:
(1) ongoing from September 2005 to December, 13, 2005, she was subjected
to hostile work environment;
(2) ongoing from December 14, 2005 to October 2006, she was subjected
to hostile work environment harassment when, including but not limited
to, she was subjected to sarcasm; constant surveillance; disparaging
remarks and comments; was threatened; was not allowed to fix labels on
her new case configuration; followed on her route and not given street
observation forms; not allowed to take a second break; accused of taking
too long to perform tasks; and no action was taken when she reported an
article of mail that appeared unsafe;
(3) on March 7, 2007, she saw a grievance document in her file which she
believes may cause a delay or denial to her application for disability;
(4) on March 16, 2007, she became aware of a statement which put her in a
"false light" when she received a case file from the Office of Workers'
Compensation Program (OWCP); and
(5) on June 15, 2007, she received a copy of her application for
disability retirement which contained a copy of a 14-day suspension
which should have been removed and fears it may cause a delay or denial
of her retirement.
The record reflects that complainant claimed that since 1990, she suffered
from Type II Diabetes which severely affected her eyesight as of March
2006. Complainant further claimed that she had damage to both hands
caused by Bilateral Carpal Tunnel Syndrome since 1999; and was diagnosed
with major depression in October 2004. Complainant stated that she
pursued a claim with the Office of Workers' Compensation Program (OWCP)
but it was denied because she did not provide supporting documentation.
The record reflects that complainant claimed that because she was having
trouble managing her finances, lost all enjoyment in life and became
suicidal, she walked off the job in October 2006.
On August 23, 2007, the agency issued a partial dismissal. Therein,
the agency accepted claim (2) for investigation.1 The agency dismissed
claim (1) for raising the same claim that is pending before or has
been decided by the agency or Commission, pursuant to 29 C.F.R. �
1614.107(a)(1). The agency dismissed claims (3) - (5) pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically,
the agency found that claims (3) and (5) constitute a collateral attack
on the Office of Personnel Management process; and claim (4) constitutes
a collateral attack on the OWCP process.
At the conclusion of the investigation of claim (2), complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
Complainant initially requested a hearing but subsequently withdrew that
request, and requested the agency to issue a final decision.
In its March 31, 2008 final decision, the agency found no discrimination
concerning claim (2). The agency found that complainant failed
to establish a prima facie case of race and age discrimination.
Specifically, the agency found that complainant failed to identify
similarly situated employees not in complainant's protected classes who
were treated differently under similar circumstances. With respect to
complainant's disability claim, the agency found that complainant failed
to establish that she was an individual with a disability because she
did not show she was substantially limited in a major life activity.2
With respect to complainant's reprisal claim, the agency found
that complainant did not establish a prima facie case of reprisal
discrimination. The agency concluded although complainant had engaged in
prior protected activity and that management was aware of such activity,
she did not provide sufficient evidence of a casual connection between
prior protected activity and the alleged discriminatory events at issue.
The agency nonetheless found that management articulated legitimate,
nondiscriminatory reasons for its actions, which complainant did not
prove were pretext for race, disability, age or reprisal discrimination.
With respect to complainant's harassment claim, the agency found
that complainant did not prove that she was subjected to harassment
sufficiently severe or pervasive so as to render her work environment
hostile.
The Supervisor Customer Services (SCS) denied subjecting complainant to
harassment. Regarding complainant's claim that SCS forced her to work
overtime although she was not on the overtime desired list in 2006, SCS
denied it. Specifically, SCS stated "I would ask her to work overtime and
she would say yes or not; She got off the overtime desired list toward
the end of the summer of 2007 and I never forced her to work overtime.
I don't believe in forcing employees to work overtime whether they're
on the overtime desired list or not."
Another Supervisor Customer Services (SCS1) also denied subjecting
complainant to harassment. With respect to complainant's claim that SCS1
subjected her to sarcasm, SCS1 denied it. Specifically, SCS1 stated "I
do not recall being sarcastic with the complainant. I do recall making
every effort to get the tools necessary to make her job more efficient.
I requisitioned an additional case for her convenience and also requested
new larger case labels for her route, during my detailed assignment.
This did seem to improve her casing efficiency, and I may have made
a comment to such." SCS1 further stated that it was possible she
questioned complainant about her extended street time "if and when she
exceeded her base data without justification." SCS1 stated that during
the relevant time, complainant was unable to complete her assignment
in the allotted time period. SCS1 stated "this was becoming a frequent
situation and to make sure that the mail would be delivered as required
daily, the situation needed to be monitored." Furthermore, SCS1 stated
that she informed complainant that her non-delivered mail was supposed
"to be worked on the street and deposited at the throwback case and not
be returned to her case in the PM."
The Manager stated that from December 14, 2005 to October 2006, she did
not subject complainant to a hostile work environment. The Manager
further stated that in March 2006, complainant asked her to keep an
identified supervisor away from her but she told complainant that the
identified supervisor "was her supervisor and that she had to have contact
with her." The Manager acknowledged taking complainant off the clock
in March 2006 because she was too upset to drive. Specifically, the
Manager stated that she went out to the street to supervise complainant
and asked her a question "she became upset."
The Postmaster stated that she did not subject complainant to a hostile
work environment. The Postmaster further stated "I do not recall the
complainant notifying me of a hostile work environment harassment
situation. No other employees were treated differently than the
complainant"
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not
prove were a pretext for discrimination, and that complainant has not
demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision concerning
claim (2) because the preponderance of the evidence of record does not
establish that discrimination occurred.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 7, 2008
Date
1 In its partial dismissal, the agency noted that on April 21,
2006, complainant was issued a 14-day suspension for Unacceptable
Behavior/Misdelivery of Express Mail. The agency further noted that
complainant did not timely initiate EEO contact concerning her 14-day
suspension. However, the agency determined that the 14-day suspension
would be used as background information with respect to complainant's
harassment claim.
2 The Commission presumes, for purposes of analysis only and without so
finding, that complainant is an individual with a disability.
3 On appeal, complainant does not challenge the August 23, 2007
partial dismissal issued by the agency regarding her other claims (from
September 2005 to December 13, 2005, she was subjected to a hostile work
environment; on March 7, 2007, she saw a grievance document in her file
which she believes may cause a delay or denial to her application for
disability; on March 16, 2007, she became aware of a statement which
put her in a "false light" when she received a case file from OWCP; and
on June 15, 2007, she received a copy of her application for disability
retirement which contained a copy of a 14-day suspension which should have
been removed and fears it may cause a delay or denial of her retirement).
Therefore, we have not addressed these issues in our decision.
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0120082476
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082476