0120112098
08-23-2011
Tina M. Harris, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Tina M. Harris,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120112098
Hearing No. 430-2008-00366X
Agency No. 4K-230-0012-08
DECISION
On March 2, 2011, Complainant timely appealed the Agency’s January
28, 2011, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the
appeal pursuant to 29 C.F.R. § 1614.405(a).
ISSUE PRESENTED
Whether Complainant was discriminated against based on her race
(African-American), sex (female), religion (Christian-Baptist) and
disability (anxiety/panic attacks) when from October 11, 2007, onward
she was subjected to a hostile work environment and ongoing harassment
including but not limited to her request for administrative leave being
disapproved after her doctor took her off work from November 6 –
December 3, 2007.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a General Clerk, PS-5 at the Agency’s Charlottesville Main Post
Office facility in Charlottesville, VA.
She filed an EEO complaint dated January 22, 2008, alleging the above
claim. At the conclusion of the investigation, the Agency provided
Complainant with a copy of the report of investigation and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing. The AJ issued a decision without a
hearing finding no discrimination, which the Agency implemented in its
final order.
Supervisor 1 is Complainant’s direct supervisor. The Postmaster
of Complainant’s post office (African-American male, Christian)
is Complainant’s second line supervisor. Supervisor 2 (White male)
is a Supervisor of Customer Services. Complainant has an office which
is separate from the work room floor.
The AJ made the following findings of undisputed facts, taking
Complainant’s version of events as true. On October 11, 2007,
Supervisor 2 called Complainant on the telephone and yelled at her for not
entering his hours in the Time and Attendance Collection System (TACS).
When Complainant responded that she was awaiting authorization from
the Postmaster to review and authorize the hours, Supervisor 2 replied
“Jesus fucking Christ, aren’t you supposed to do this daily.”
Earlier that day, when a customer called, Supervisor 2 told Complainant
he did not have time, was busy, and to take a message, and Complainant
replied “oh no you didn’t talk to me that way” and asked
the customer (holding the telephone) if she heard Supervisor 2’s
comment. Later that day, Supervisor 2 questioned Complainant about
her conversation, and Complainant told him he was unprofessional and
disrespectful. Supervisor 2 replied that was “bullshit.” Complainant
tried to end the conversation and Supervisor 2 came within three inches
of her face and said “I am the senior fucking supervisor and you will
have this conversation.” Complainant tried to leave the office but
Supervisor 2 blocked the entrance.1 He then left and as he walked away
yelled “bitch.”
On October 16, 2007, Complainant noticed Supervisor 2 following her, and
felt threatened and afraid. She reported the matter to the Postmaster,
who told Supervisor 2 to walk in the direction away from Complainant.2
Due to her feelings of unease, Complainant sought medical attention, and
was diagnosed with panic/anxiety attacks. She stayed out of work until
returning on October 29, 2007. The record reflects that on October 16,
2007, Complainant submitted a request for administrative leave, writing
she had too much distress to remain at work, and needed immediate medical
assistance. The Postmaster denied the request, writing her services were
needed. Report of Investigation (ROI), 279. Labor Relations conducted an
investigation on the October 11, 2007, on the conflict between Complainant
and Supervisor 2 which arose in connection with the customer.
On November 5, 2007, Supervisor 2, who was scheduled to meet with
Supervisor 1, walked by Complainant’s door, and she had a panic attack
and was taken to the hospital. She requested administrative leave or,
if disapproved, continuation of pay (COP). She remained out of work until
December 3, 2007. In denying Complainant’s request for administrative
leave which she submitted on January 8, 2008, the Postmaster wrote there
was no documented evidence to support it. ROI, 280. In response to a
question about administrative leave, the Postmaster stated he inquired
about it with his superior, and it was determined that Complainant was
not entitled to administrative leave. ROI, 241.3
Upon her return, Supervisor 1 threatened and continued to remind
Complainant that her position was being considered for abolishment.
The record reflects that soon prior to this, an audit revealed that
Complainant’s job had duties that should take no more than four hours
daily. It noted the job’s time and attendance function had diminished
because it no longer included plant employees, and the function should
be absorbed by management. Supervisor 1 shared the results of the audit
with Complainant.
The AJ found that based on the Labor Relations investigation, Complainant
received a letter of warning dated January 18, 2008, and Supervisor 2
received a proposed letter of warning on January 29, 2009.
The AJ found that Complainant did not establish an inference of religion
discrimination since there was no evidence, including Complainant’s
own statement, that management was aware of her religion. Supervisors 1
and 2, and the Postmaster denied knowing Complainant’s religion.
Complainant contended that she believed she was a victim of sex and
race discrimination because the term “bitch” was primarily used
against African-American women. The AJ found that in her affidavit,
Complainant included a list of other employees who were also subjected to
poor treatment by Supervisor 2, which contained male and female names.
After describing the incidents perpetrated against her by Supervisor 2,
Complainant wrote he often had these hostile approaches with employees
and supervisors alike, listing 12 of them, with male and female
names. Complainant provided statements from three of them, all men.
One described Supervisor 2 as having extreme mood swings, another wrote
he is extremely argumentative and abrasive, and a third wrote that he
angrily called him pussy over a three day period. The AJ found that
other than Complainant’s opinion that “bitch” is more readily
directed to African-American females, there was no evidence establishing
a connection between the alleged hostile treatment and her membership in
the protected groups. The AJ found that it was evident that Supervisor
2 had a reputation of ill-treatment toward Agency employees of varied
protected groups.
The AJ found that Complainant did not did not make out a prima facie
case of disability discrimination because she did not show she had
a disability. The AJ found that even assuming Complainant was an
individual with a disability, management stated they were not aware of
her health issues and there was no evidence she requested any reasonable
accommodation.
CONTENTIONS ON APPEAL
Complainant argues that she established a prima facie case of sex
discrimination. She writes that she claimed Supervisor 2 made rude and
condescending remarks to women in general, and a prima facie case can be
made without comparative evidenced. She argues that the investigation
was inadequate because a witness to the October 11, 2007, incident did not
provide an affidavit, nor did a witness to the November 5, 2007, incident.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ’s legal
and factual conclusions, and the Agency’s final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision
on an appeal from an Agency’s final action shall be based on a de
novo review . . .”); see also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9,
1999) (providing that an administrative judge’s “decision to issue a
decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will
be reviewed de novo”). This essentially means that we should look at
this case with fresh eyes. In other words, we are free to accept (if
accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of
whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, § VI.A.
We 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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
As an initial matter, we find that the record was sufficiently developed
for the AJ to make a decision without a hearing. Complainant writes that
statements were not provided by witnesses to the incidents of October
11, 2007, and November 5, 2007. The witness to the October 11, 2007,
incident, however, provided an email recounting what she witnessed, and
Labor Relations wrote an account of what she reported the investigation.
We also find that there is sufficient information in the record about
the November 5, 2007, incident, and Complainant does not indicate any
additional facts that the witness would have provided.
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
(Mar. 8, 1994).
We agree with the AJ’s finding that Complainant failed to establish a
prima facie case of religion, sex and race discrimination. As found by
the AJ, there was no evidence that management was aware of Complainant’s
religion. Complainant argues that comparative evidence is not necessary
to establish a prima facie case. While this is true, the evidence in
this case shows that Supervisor 2 treated Complainant in the same manner
he treated others outside her protected groups.
For purposes of analysis only, we assume without finding that Complainant
is an individual with a disability. While Supervisor 2 denied being
aware that Complainant had a medical condition and there is no evidence to
the contrary, the same cannot be said of the Postmaster. The Postmaster
stated he was not aware Complainant had a medical condition. There is
some evidence, however, that he knew Complainant had anxiety and panic
attacks. When Complainant applied for administrative leave on October 16,
2007, she wrote that she was too distressed to remain at work and needed
immediate medical assistance. Also, Complainant sent the Postmaster
an email on December 21, 2007, that to avoid another panic attack she
needed to stay away from Supervisor 2. ROI, 135.
In denying Complainant’s requests for administrative leave, the
Postmaster wrote that Complainant’s services were needed and she
submitted insufficient documentation. The Postmaster stated he checked
with his superior, and was advised Complainant was not entitled to
administrative leave. Complainant does not contend she was denied other
types of leave, and there is no evidence she was so denied.
Complainant has not shown that the Postmaster’s reasons for denying
her administrative leave, which is paid leave without charge to annual
or sick leave, were pretext to mask discrimination. The record contains
the Agency’s policy on the provision of administrative leave, and
none of the reasons permitted for giving administrative leave fit
Complainant’s situation. ROI, Exh. 18.
Finally, the record shows that Supervisor 1’s alleged comments to
Complainant about the prospective abolishment of her job were consistent
with a prior written Agency audit, and there is no evidence Complainant
was treated disparately regarding this matter. The AJ found that in
June 2008, a Function 4 Review abolished Complainant’s job, and based
on her bid job, she was now working as a Training Technician, PS-6.
Complainant has failed to prove discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we AFFIRM
the Agency’s final order which implemented the AJ’s finding of no
discrimination.
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 23, 2011
__________________
Date
1Complainant did not dispute Supervisor 2’s contention that there was
also a door behind Complainant she could have used.
2 The Postmaster wrote a letter dated October 16, 2007, to Supervisor
2 instructing him to avoid any contact with Complainant until further
notice, and if he saw her coming, to go in the other direction.
The letter advised that if he had information regarding timekeeping,
to give it to Supervisor 1 to confer with Complainant.
3 The information about denial of administrative leave in this decision
was obtained from uncontested information in the record.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120112098
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112098