0120091619
05-21-2009
Teawona Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Teawona Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091619
Agency No. 4J-604-0001-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 20, 2009 final decision concerning
her equal employment opportunity (EEO) complaint claiming 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.
On January 4, 2008, complainant filed the instant formal complaint.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of race (African-American), sex
(female), color (black), disability (migraines, carpel tunnel syndrome,
right thumb, CMEJ Daw/Synovitis), and age (over 40) when:
she has been subjected to discriminatory harassment on a daily basis,
including being continuously "nit-picked;" every move she makes is
watched and questioned; her hours have been changed daily; and on
September 12, 2007, she was questioned about the length of time she
spent in a restaurant where she had gone to use the restroom.
After the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
On December 8, 2008, the AJ issued an order, dismissing the formal
complaint from the hearing process. In his Order, the AJ concluded that
because complainant failed to show cause for her failure to adequately
respond to the agency's discovery request and her failure to cooperate
with discovery, file timely pre-hearing submissions and follow the
AJ's orders, he remanded the case to the agency for issuance of a final
decision. Therefore, the agency issued the instant final decision on
January 20, 2009.
In its January 20, 2009 final decision, the agency found no
discrimination.1 Specifically, the agency found that complainant did not
establish a prima facie case of race, sex, color and age discrimination.
Regarding the basis of disability, the agency found that complainant
failed to establish a prima facie case of disability discrimination
because she failed to show that she was substantially limited in a major
life activity. The agency concluded that complainant failed to show
that she was a qualified individual with a disability as defined by the
Rehabilitation Act. The agency further found that assuming, arguendo,
that complainant established a prima facie case of race, sex, color,
disability and age discrimination, management articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext. 2
Regarding the harassment claim, the agency found that the evidence in
the record did not establish that complainant was subjected to harassment
based on prior protected activity. Specifically, the agency found that
the alleged harassment was insufficiently severe or pervasive so as to
create a hostile work environment.
The Postmaster (PM) denied subjected complainant to harassment by
nit-picking on complainant; or by watching and questioning her actions on
a daily basis. PM further stated that as a Postmaster, he reviews "the
TACS printout of all employees. When there is a question, I do question
the supervisors. The supervisor may go to the employee and ask questions,
but that is up to the supervisor. I expect the supervisor to review
the assigned employees under them on a daily basis and to ensure the
employee is making accurate and timely moves in the system." PM stated
that complainant "is not watched any differently than all employees.
I do have to remark that injured employees are watched closed to ensure
they stay within the medical restrictions and stay productive within
those restrictions."
PM stated while he was unaware of any mental disability, he was aware
of complainant's work-related injury that has placed certain work
restrictions on her. PM stated that in regard to complainant's claim that
her hours were being changed daily, complainant filed three grievances and
the union "dismissed the statements by [complainant] regarding harassment
and Stress, daily changing of hours and to whom she reports. . .."
PM stated that he agreed to keep complainant's reporting time at 9:00 a.m.
PM stated that a review of TACS printouts from February through December
2007, reflected that on most days complainant was later for work; that
her starting time had been 9:00 a.m. for some time, except from April
18, 2007 to July 7, 2007, when she had an 8:30 a.m. reporting time,
and there has not been a daily change in reporting time. PM noted
that complainant wanted a 7:30 a.m. reporting time; however, the agency
did not agree to this.
Further, PM stated that on September 12, 2007, he saw complainant "at a
local restaurant at around 12:20 pm. [Complainant] was standing in line
to pick up food. She had apparently been there long enough to order food.
I did say hello to her as she passed me with a bag of food. This was
not an authorized lunch location for her." PM stated that complainant
"was not at the restroom. In this restaurant, the restroom would
be over 50 feet from [complainant] and behind where I was standing."
PM stated that when he arrived to the office around 1:00 p.m., he asked
complainant's supervisor (S1) if she was authorized to be at the local
restaurant and S1 stated "'no' and that he was going to check with
[complainant] about it. I left it in his hands."
S1 stated "I have never witnessed or have ever taken part in any
'nit picking', of [complainant] as mentioned in this question. I do,
however, ask [complainant] on occasion, possibly one or two times a
week, if she was given copies of the customer pick-ups for that day."
S1 further stated that during the relevant time, complainant has not
made a claim of harassment with him or his staff.
Supervisor Customer Supervisor, also complainant's supervisor (S2),
stated that complainant was assigned to her unit in August 2007 and her
reporting time was 9:00 a.m. Specifically, S2 stated that she was not
aware of complainant's hours being changed on a daily basis and that
her reporting time was 9:00 a.m. S2 further stated that because she,
S2, reports to work at 11:00 a.m., she had "very little" interaction
with complainant. S2 stated that during the relevant time, she was
"unaware of [nit] picking . . . everyone is treated equally by me."
S2 stated "if you do something wrong it should be questioned and it's
unfortunate if the complainant things she is being targeted." S2 stated
that the only time she questioned complainant was "if there is a problem
with a duty she performed (which is rarely) or for her clock ring errors,
not punching in or clocking in and not filing out a 3971."
S2 stated that she tried to intervene concerning the September 12,
2007 incident but complainant "did not want to talk or had problems
and made allegations against the male supervisor at the time [S1]."
With respect to complainant's harassment allegation, S2 stated that
complainant "alleged she had been harassed for many years."
On appeal, complainant contends there are no authorized stops while doing
Express Mail. Complainant further states "once I finished the last on
in the 14th hundred blocked in Wenonah I went to a restaurant to use
the bathroom rather it was a authorize stop or not. I get a 10 min[ute]
break and a lunch. I don't need to get approval to go to the washroom
when I was in the area where a rest room was available."
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).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. 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.
As an initial matter, we find that complainant, on appeal, has not
provided any persuasive argument regarding the propriety of the agency's
finding of no discrimination. The Commission determines that the agency
conducted a thorough investigation.
Therefore, 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 because the preponderance of the evidence of record does not
establish that discrimination occurred.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
May 21, 2009
__________________
Date
1 In its final decision, the agency noted that the instant formal
complaint included additional claims of discriminatory harassment before
August 17, 2007. The agency stated that in its January 15, 2008 partial
dismissal, the additional claims were dismissed on the grounds for
untimely EEO Counselor contact. The agency stated, however, that the
January 15, 2008 partial dismissal is "herein endorsed and incorporated
by reference for the purpose of the instant final decision."
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 an agency January 15, 2008
partial dismissal regarding another claim (that she was discriminated
against on the bases of race, sex, color, disability and age when since
on or about 2004 to August 16, 2007, she was subjected to discriminatory
harassment on a daily basis, including being "continuously [nit] pick;"
every move she makes is watched and questioned; and her hours have been
changed daily). Therefore, we have not addressed this issue in our
decision.
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0120091619
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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