0120090575
07-09-2010
Suheda Tokur, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Suheda Tokur,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120090575
Agency No. 1H-328-0001-08
DECISION
On November 26, 2008, Complainant filed an appeal from the Agency's
October 28, 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 appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission MODIFIES the Agency's final decision.
ISSUES PRESENTED
(1) Whether Complainant established that she was subjected to
discrimination and/or a hostile work environment;
(2) Whether Complainant was denied a religious accommodation; and
(3) Whether Complainant was denied official time to work on her EEO
complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a mail handler at the Orlando, Florida, Processing and Distribution
Center. On January 11, 2008, Complainant filed an EEO complaint alleging
that she was discriminated against on the bases of race (Indo-European),
national origin (Oruz Turkish), sex (female), religion (Islam) and
reprisal for prior protected EEO activity [under Title VII] when, since
August 2006 and continuing, she was subjected to harassment/hostile
work environment including, but not limited to matters pertaining to
her leave usage, work performance and work assignments.1
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).
Final Agency Decision
In affidavit testimony dated February 28, 2008, Complainant alleged that
in August of 2006, her supervisor (S1) told her to clock out because her
hijab was not safe and to go home and change her clothes to short pants
and a T-shirt, and to put her hair in a pony tail. Complainant stated
that she informed S1 that her religion was Islam, and that Muslim women
were only allowed to wear the hijab in public. The FAD found, however,
that just as she was about to clock out, S1 told her not to do so,
and to go back and finish her work.
Complainant stated that her hijab was tucked into her blouse, while other
employees, including S1, were allowed to wear loose clothing that fell in
front of them. She also stated that S1's ties, and some mail handlers'
necklaces could get caught in the machinery, as well as wristwatches,
and rings. Complainant also claimed that during the second week of
August 2006, S1 touched the corner of her scarf and stated that it was
too loose. The FAD noted that Complainant herself stated that she had
worn her hijab since her first day of work, and that no supervisor had
concluded that her clothes and scarf were not safe for work.
Complainant indicated that some time in early 2007, S1 became the Acting
Manager, Distribution Operations, and she noticed that some of the 204Bs
(Acting Supervisors), suddenly became more strict and more focused on
her than on the other mail handlers working Tour 2.
Complainant claimed that on April 2, 2007, another Supervisor accused her
of looking at her cell phone for the correct time in order to rotate work
with other mail handlers. She averred that she was accused of working
too slowly, and not keeping up with the other four (4) mail handlers,
all males, in prepping mail. She indicated that there were two (2)
other mail handlers working alongside her on overtime, and they were
not told to help her keep up. The FAD noted that Complainant explained
that the mail had come in with sleeves, which had to be removed, making
induction more difficult. She stated that instead of providing help for
her, the supervisor called her aside and told her to hurry up. The next
day she reported the incident to her union steward, and when they met
with the Supervisor, he accused her of working too slowly, looking at
her cell phone, reading the mail, and having a low machine count.
Complainant next asserted that in April 2007, S1 confiscated her hot
water pot from the break room. She averred that there were other hot
water pots in the break room, but he did not take them. In addition,
Complainant stated that on April 21, 2007, after working for seven (7)
hours, she went home sick. She stated that she was told to bring in
medical documentation, even though she was not on restricted sick leave.
She maintained that other employees were not required to provide
documentation even if they called in sick for two (2) days.
Next, Complainant stated that on May 16, 2007, a mail handler stood
in front of her and prevented her from reaching a box that she needed
for work. Although she reported it, management failed to investigate
the incident.
Complainant claimed she learned on May 18, 2007 that her son would
receive awards at school the next day. Wanting to attend, she called
work the next morning at 6:50 a.m. and at 7:00 a.m., but there was no
response. At 7:30 a.m., S1 answered, and told her that he could not help
her in her desire to participate in the ASP (Associate Supervisor Program)
because she had called in for emergency annual leave (EAL).
The FAD also found the following: Complainant stated that on May 20, 2007,
although S1 had watched Complainant clock in, he refused to make sure the
call-in time on her time card reflected the correct time. She alleged
that S1 observed her numerous times between June and September 2007.
The FAD also noted that Complainant stated that on May 24, 2007, after a
dental appointment, S1 required that she provide medical documentation
before she could clock in. Also, in June 2007, she was asked to bring
in medical documentation.
Complainant stated that, on May 16, 2007, she was assigned to work with
the mail handler (M1) who had behaved in a threatening manner in the past.
On August 24-26, 2007, and September 24, 2007, someone put garbage in the
hot water pot that she used for making tea. Complainant stated that a
few days later, she again found garbage in the hot water pot. She noted
that the hot water pot had a lid, so it had to be deliberately opened.
She stated that she was sure it was intentional, and feared someone would
put something in her food that would make her sick. She reported these
incidents to the Inspection Service.
She further stated that on August 27, 2007, she had finished her work,
and M1 approached her and said he was flattered she was working with him
again, to which Complainant responded "You are not going to harass me
again, right?" The mail handler responded that he did not want to talk
about it, and if she did not like what he said, she could report it to
a supervisor. She alleged that he became antagonistic and dared her to
report the incident. According to Complainant, M1 came over to her even
though he knew she did not want to be near him, and kept mumbling and
calling her name. She stated that when she told him not to talk to her,
he replied "Who cares, if I want to talk to you. I will."
Finally, Complainant alleged that on December 21, 2007, she requested from
a Supervisor, 16 hours of "official time" to work on her EEO complaint,
which the Supervisor immediately denied without explanation.
In its analysis, the FAD found that Complainant did not set forth
conduct that was severe or pervasive enough to create a hostile work
environment. In addition, the FAD found that the evidence did not show
that the conduct at issue was based on Complainant's protected groups.
The FAD further noted that when Complainant complained of harassment
by another mail handler, an OIG investigation was conducted, and no
violation was found.
As to the hot water pot, the FAD noted that the item was removed by
management for safety reasons (water was boiling in the pot which had been
left unattended), but it was not "confiscated' as Complainant alleged.
In addition, the FAD noted that management suggested to Complainant that
she secure her hotpot so that no more unknown objects/liquids would be
placed in it. The FAD found no evidence that any alleged action was
motivated by discriminatory animus.
The FAD additionally found that there was no failure to accommodate
Complainant's religious beliefs as Complainant was permitted to wear her
hijab every day without exception. The FAD concluded that Complainant
failed to prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates her version of events, pointing out what
she calls "errors, inconsistencies, and contradictions. She notes that
on May 6, 2007, her Manager, Distribution Operations (MDO) was observed
standing near the water fountain and was asked by a mail handler "who are
you watching?" and the MDO stated, "I am watching that lady", referring
to Complainant, who was completely unaware that she is being watched
intensely while she was prepping mail for the Flat Sorter Machine.
Complainant describes the placement of garbage and liquid in her hot pot
as a "hate crime" that should have been investigated. She states that
she could have gotten sick from the garbage or liquid that was placed
by somebody (possibly a manager) in her hotpot.
Complainant also denies that it is in accordance with Agency policy to
require that she bring in medical documentation for absences. She asserts
that the local policy clearly states that for absences of three days or
more, employees are required to bring documentation (U.S. Postal Service
and NPMHU National Agreement). She notes that she came to work every day
and used only a few hours of leave for dentist and doctor appointments.
As to the Agency's claim that the incident on May 16, 2007 between
complainant and M1 did not involved physical contact or threats,
Complainant asserts that the conduct was a violation of the Zero Tolerance
policy because M1 twice pushed the sleeve container away from her, stood
menacingly in front of her, blocked her from inducting the mail, put his
foot on the induction line (twice) thus preventing her from inducting
the mails in the system, and told her she could not work in that area.
Complainant asserts that the person does not have to be physically hit
by hand or any object to consider the manner to be threatening. She
also contends that her request for "official time" was denied without
explanation.
In its Opposition to the Appeal, the Agency contends that the FAD is
correct, and asks the Commission to AFFIRM the FAD.
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 EEOC Management
Directive 110, 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").
Hostile Work Environment
To establish a claim of harassment a complainant must show that: (1)
they belong to a statutorily protected class; (2) they were subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on
their 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 to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982). Further, the incidents must have been "sufficiently
severe or pervasive to alter the conditions of [complainant's] employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). The harasser's 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 at 6 (March 8, 1994).
Based on this record which contains conflicting versions of several events
(particularly concerning Complainant's unpleasant interactions with M1),
we cannot conclude that Complainant was subjected to conduct which was
based on her membership in a protected group. The only indication that
her race or religion may have been involved in any of the Agency's conduct
was that Complainant was told she could not wear her hijab to work for
safety reasons. However, the manager quickly recanted and allowed her
to wear the hijab. We are not persuaded that management's telling her
that her scarf was too loose to be safe, is evidence of management's
intent to discriminate.
As to the hot water pot, the record does not clearly show who may have
been responsible for filling the pot with unknown objects or liquids.
The record certainly does not indicate that whoever filled the hot
water pot with unknown matter was motivated by discriminatory animus.
Although there is no report in this record produced by the Office of
Inspector General (OIG), numerous witnesses testify that the OIG made
inquiries into Complainant's allegations of harassment, and concluded that
there was no evidence of unlawful activity.2 This record simply does not
show that discrimination or retaliation motivated the alleged harassment
described by Complainant. We note that Complainant did not request a
hearing, accordingly, we do not have the benefit of an Administrative
Judge's findings after a hearing, and we can only evaluate the facts
based on the weight of the evidence presented to us.
Religious Accommodation
We note that under Title VII, employers are required to accommodate the
religious practices of their employees unless a requested accommodation
is shown to impose an undue hardship. 42 U.S.C. � 2000e(j); 29 C.F.R. �
1605.2(b)(1). The traditional framework for establishing a prima
facie case of discrimination based on religious accommodation requires
Complainant to demonstrate that: (1) she has a bona fide religious belief,
the practice of which conflicted with their employment, (2) she informed
the Agency of this belief and conflict, and (3) the Agency nevertheless
enforced its requirement against Complainant. Heller v. EBB Auto Co., 8
F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co.,
736 F.2d 1022, 1026 (5th Cir. 1984). As Complainant herself states that
she was permitted to wear her hijab to work each day without exception,
we discern no failure to provide a religious accommodation.
Official Time
Complainant alleges that on or about December 21, 2007, a Supervisor,
Distribution Operations, denied (without explanation) Complainant's
request for 16 hours of official time which she needed to prepare her
EEO complaint. See ROI, Affidavit A, at 55. According to Complainant,
she was even going to use her annual leave. She further stated that
the Supervisor did not even consider her request "for a second, he just
disapproved it right there and then, and told me that he cannot give
the time off that I am requesting." Our review of the record reveals
that there was no explanation for the denial provided by the Agency.
The Commission has stated that an allegation pertaining to the denial of
official time states a separately processable claim alleging a violation
of the Commission's regulations, without requiring a determination of
whether the action was motivated by discrimination. Bryant v. Department
of Treasury, EEOC Appeal No. 0120065274 (February 25, 2009) (citing
Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (December 23,
1996)). Therefore, the Commission has the authority to remedy a violation
of 29 C.F.R. � 1614.605 without a finding of discrimination." Id.
The record shows that although she asked for official time, the Agency
denied her request without explanation. Because the Agency has never
provided an explanation for the denial, we find that Complainant was
denied official time.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we MODIFY the FAD,
in that we find that Complainant was improperly denied official time on
or about December 21, 2007.
ORDER
Within sixty (60) calendar days of this decision becoming final:
The Agency is ORDERED to require that all its Managers and Supervisors
at the Orlando, Florida, Processing and Distribution Center read and
indicate that they understand the process for requesting official
time, as explained in EEO Management Directive 110 (MD-110) and 29
C.F.R. � 1614.605. The Agency will also determine whether Complainant
subsequently took leave as a result of being denied, in December 2007,
official time to work on her EEO complaint. If so, the Agency will
reimburse Complainant for any leave that she may have taken.
The Agency shall submit a report of compliance, as provided in the
statement entitled "Implementation of the Commission's Decision." The
report shall include evidence that the corrective action has been
implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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. 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
___7/9/10_______________
Date
1 Complainant cites approximately 19 incidents of alleged harassment,
many of which will be discussed herein. One of the alleged incidents
involved an alleged denial of religious accommodation (removal of her
hijab), and another involved being denied "official time" to prepare
her EEO complaint.
2 See ROI, Affidavit 12, at 12.
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0120090575
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090575