01985348
02-23-2000
Nancy Ozlek, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.
Nancy Ozlek v. United States Postal Service
01985348
February 23, 2000
Nancy Ozlek, )
Complainant, )
) Appeal No. 01985348
v. ) Agency No. 1C191005097
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Nancy Ozlek (complainant) timely initiated an appeal of a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of race (Caucasian) and sex (female),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges she was discriminated
against on December 16, 1996 when: (1) management did nothing when a
co-worker brushed his finger against her chest in a threatening way;
and (2) management did nothing when another co-worker approached her
and screamed at her, causing her to miss work for several weeks due to
work-related stress. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a PS-04 Mailhandler, at the agency's Philadelphia Bulk Mail Center.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on April 28, 1997,
alleging discrimination as described above. At the conclusion of the
investigation, the agency advised complainant of her right to request an
administrative hearing. After receiving no response within the required
time period, the agency issued a FAD on May 29, 1998.
The FAD concluded that complainant failed to establish a prima facie
case of race or sex discrimination because she presented no evidence
that similarly situated individuals not in her protected classes
were treated differently under similar circumstances. The FAD went
on to find that management articulated legitimate non-discriminatory
reasons for its actions. Specifically, management officials testified
that when complainant notified them of the incidents in question, an
investigation was immediately instigated. The employee involved in
the first allegation was told that he could not continue his acting
supervisor duties or training until the investigation was completed.
After talking with the parties involved and witnesses to the altercations,
management determined that complainant was not physically touched and
that she initiated the first altercation. Moreover, management noted
that the Crises Intervention Team (CIT) was immediately notified and
that a CIT member set up a meeting with complainant. Finally, a member
of CIT who was witness to the incident described in Issue No. 2, noted
that he spoke with the co-worker involved immediately and told him not
to concern himself in other employee's situations.
Finding that complainant offered nothing to indicate that the agency's
reasons were not credible or were a pretext to mask discrimination,
the FAD concluded that complainant had not met her burden of proving
discrimination.
On appeal, complainant reiterates her contention that the supervisors
involved ignored her feelings of pressure and intimidation and made no
effort to help her and notes that the coworker involved in Issue No. 1
had gone out of his way to confront her at other times. The agency
requests that we affirm its FAD.
FINDINGS AND ANALYSIS
In the absence of direct evidence of discrimination or retaliation,
the allocation of burdens and order of presentation of proof in a Title
VII case is a three-step process. McDonnell-Douglas Corp v. Green,
411 U.S. 792 (1973).
Complainant has the initial burden of establishing a prima facie case
of discrimination. A prima facie case of discrimination based on sex or
race is established where complainant has produced sufficient evidence
to show that (1) she is a member of a protected class; (2) she was
subjected to an adverse employment action; and (3) similarly situated
employees outside her protected class were treated more favorably
in like circumstances. Complainant may also meet this burden by
presenting other evidence which raises an inference of discrimination.
Potter v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).
If the agency articulates a reason for its actions, the burden of
production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason
is discrimination. Throughout, complainant retains the burden of proof
to establish discrimination by a preponderance of the evidence. It is
not sufficient "to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination." St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original).
After a careful review of the record, the Commission agrees with the
agency that complainant failed to establish a prima facie case of
race or sex discrimination. Complainant failed to establish that
any similarly situated individuals were treated more favorably in
similar circumstances. Moreover, she offered no other evidence that
raises an inference of sex or race discrimination. We note, however,
that the FAD may have mischaracterized complainant's claims as claims
of disparate treatment when, in truth, complainant intended to allege
race and sex-based/sexual harassment. Complainant's complaint describes
two incidents in which co-workers intimidated her and notes that both
of the alleged intimidators were Black males and that she was the only
White female present. Complainant also described how management failed
to sufficiently address this behavior, causing her emotional distress
which made it impossible for her to work for several weeks.
Assuming, then, that complainant's complaint is more accurately seen
as one of harassment, we find that she has failed to state a claim
of harassment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court reaffirmed the holding of Meritor Savings
Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. The Court explained that an "objectively
hostile or abusive work environment" is created when "a reasonable person
would find [it] hostile or abusive and the complainant subjectively
perceives it as such." Harris, supra at 21-22. Thus, not all claims
of harassment are actionable. Where a complaint does not challenge
an agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable
to the complainant, determine whether they are sufficient to state a
claim. See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
In the case at hand, complainant complained of two incidents which
occurred on the same day and involved altercations with two coworkers.
While one of these altercations lasted several minutes, the other was of
shorter duration and occurred in front of a supervisor who complainant
acknowledged immediately told the coworker involved to get back to work
and keep out of other employees' issues. Even assuming, therefore,
that these events transpired exactly as described by complainant, they
did not create an environment which a reasonable person would find to
be hostile. Indeed, it is well-settled that unless the conduct is very
severe, a group of isolated incidents will not be regarded as creating a
discriminatory work environment. See James v. Department of Health and
Human Services, EEOC Request No. 05940327 (September 20, 1994); Walker
v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982). The altercations
described by complainant, while no doubt disturbing to her, do not rise
to this level.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
02/23/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.