0120100351
07-11-2012
Mayda F. Sanchez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Mayda F. Sanchez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120100351
Hearing No. 550-2009-00131X
Agency No. 1F-946-0038-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 24, 2009 final order 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mailhandler Equipment Operator at the Agency's Processing and Distribution Center in Oakland, California. On August 8, 2008 (and amended on October 17 and 30, 2008), Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of sex (female) and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, since December 2007, she has been singled out and subjected to verbal abuse, continuously accused of not doing her job and/or failing to report to her assigned duties, threatened by her manager (M1) to return her to the first floor, being instructed to work outside of her medical restrictions, being micromanaged, and being treated in an intimidating and threatening manner.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ issued a decision without a hearing on September 16, 2009.
In his decision, the AJ determined that Complainant had not established a prima facie case of a discriminatory or retaliatory hostile work environment. The AJ found that the initial incidents alleged included Complainant being told by M1 to stop driving around and to report to another location on December 11, 2007; Complainant being accused of parking her jitney in front of the bathroom all day on April 4, 2008; and Complainant being accused of failing to help pull mail from the dock on April 30, 2008.
M1 explained that on December 11, 2007, she instructed Complainant to return to the first floor to "cut" the mail, as drivers were complaining that Complainant was in the break room and that they were doing her job. Complainant had been given instructions earlier that day from another superior which she understood limited her to only doing express mail. M1 believed that Complainant was to follow the most recent instructions given by a supervisor or manager and her failure to follow M1's instructions resulted in "gridlock" and a verbal confrontation between them.
On April 4, 2008, after receiving word that Complainant was not responding to her page to dispatch mail and hearing that Complainant's jitney was parked in front of the women's restroom, M1 went to look for her. Complainant left the restroom by another door upon M1's arrival. M1 affirmed that this happened on two separate occasions and Complainant's co-workers complained about it.
On April 22, 2008, after Complainant did not respond to repeated pages to assist with dispatch on the first floor, M1 directed a supervisor to look for her. The supervisor located Complainant outside her work area, sitting down, and talking to a co-worker. Complainant was verbally disciplined after explaining that she did not believe that she had to do first floor dispatch even though her bid was for work on that floor.
On April 30, 2008, M1 instructed Complainant to help pull mail rather than look only for express mail as she had been doing. After Complainant told M1 not to speak with her, M1 went to another supervisor and asked her to instruct Complainant to pull the mail, but Complainant was not seen anymore that evening. Complainant had similar disputes with M1 between May 22 and 30, 2008, and went out on stress leave until October 3, 2008.
On October 3, 2008, Complainant alleged that she was accused of sitting in the breakroom and threatened with returning her to the first floor. Additionally, Complainant alleged that M1 constantly appeared wherever she was working. Further, Complainant alleged that on October 16 and 17, 2008, she was instructed to work outside of her medical restrictions, was micro-managed, and was treated in an intimidating and threatening manner. Complainant claimed that her doctor asked that Complainant be moved away from the first floor and to avoid working with M1.
M1 affirmed that on October 3, 2008, she asked a supervisor to tell all employees to go and work on the first floor and that when Complainant was the only one not to respond, she was told by the supervisor that Complainant was in the break room. After M1 sent the supervisor to speak with Complainant, he reported to M1 about Complainant's alleged work restrictions. M1 asserted that she was never previously made aware of any medical restrictions concerning where and for whom Complainant may work. The AJ noted there was no documentation in the record showing that Complainant's doctor ordered that Complainant not work under the supervision of M1. Although there was no work available on the third floor for Complainant, she remained there for two hours rather than report to the first floor as ordered by M1.
M1 stated that on October 16, 2008, she was in charge of the entire facility and asked why Complainant was not logging in certain political mailings as was required. Complainant told M1 "get out of my face." M1 asked another supervisor to obtain the log; however, Complainant left the floor for an extended period of time. Thereafter, Complainant was ordered by M1's supervisor to work on the second floor.
The AJ found that the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. The AJ noted that Complainant acknowledged that the behavior of which she complained was also directed at other employees and supervisors. Further, the AJ determined that there was no evidence that the alleged incidents were motivated by discriminatory or retaliatory animus. As a result, the AJ found that Complainant had not been subjected to a hostile work environment or reprisal as alleged. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ ignored evidence supporting her claims and thus erred in issuing a decision without a hearing. Complainant argues that she was singled out and treated in a manner more harsh and severe than other employees. Further, Complainant contends that M1 has a reputation of being vindictive and relentless when she is crossed by a subordinate and she felt threatened to accede to M1's demands. Accordingly, Complainant requests that the Commission reverse the Agency's final order.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The Commission notes that Complainant's opposition to the AJ's notice of intention to issue a decision without a hearing must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and her arguments on appeal do not undermine the AJ's determination that, even assuming all facts in her favor, a reasonable fact finder could not find in her favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Here, Complainant asserted that based on her statutorily protected classes, management continuously subjected her to a hostile work environment. Construing the evidence in Complainant's favor, the Commission finds that Complainant has not shown that she was subjected to a hostile work environment. Complainant has cited numerous incidents where Agency management took actions that seemed adverse or disruptive to her; however, the Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to rise to the level of a hostile work environment. In addition, the Commission finds that Complainant failed to show that these incidents were unlawfully motivated by discriminatory or retaliatory animus. While the record strongly suggests that Complainant and M1 had a contentious work relationship, the Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). As a result, the Commission finds that Complainant has not established that the Agency's actions were in violation of Title VII.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 (Nov. 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:
______________________________ July 11, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
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0120100351
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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