0120100826
07-25-2012
Toni A. Coleman-Scruggs, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Toni A. Coleman-Scruggs,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120100826
Hearing No. 470-2009-00098X
Agency No. 4J-460-0124-08
DECISION
On December 7, 2009, Complainant filed an appeal from the Agency's November 5, 2009, 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., 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant failed to demonstrate that she was subjected to discrimination.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to harassment and discrimination based on her sex, race, age, disability, and reprisal when: she was denied a reasonable accommodation meeting; denied advanced sick leave; verbally harassed and intimidated in person and via email; her FMLA rights were violated; she was denied access to her office; her expense report was denied; she was subjected to racist remarks by the Manager; she was denied a representative after she requested one during a meeting with her manager on or about July 22, 2008; she was mandated to work six days without a day off; and she was bypassed for an end of year achievement award.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS-20 at the Agency's Griffith Post Office facility in Griffith, Indiana. Following the tragic loss of her daughter, Complainant began to experience major depression. Complainant scheduled treatment with a therapist for the end of the work day. During this same time period Complainant also experienced a medical condition that required her to have surgery. Complainant maintained that her Manager's actions and behavior during this time were discriminatory, harassing and unreasonable, and against Agency regulations.
On October 30, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (major depression), age (43), and in reprisal for prior protected EEO activity under Title VII when on April 16, 2008, through October 8, 2008:
1. She was denied a reasonable accommodation meeting;
2. She was denied advanced sick leave;
3. She was verbally harassed and intimidated in person and via email;
4. Her FMLA rights were violated;
5. She was denied access to her office;
6. Her expense report was denied;
7. She was subjected to racist remarks by the Manager;
8. She was denied a representative after she requested one during a meeting with her
manager on or about July 22, 2008;
9. She was mandated to work six days without a day off; and
10. She was bypassed for an end of year achievement award.1
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 timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, management articulated legitimate, nondiscriminatory reasons for its actions, namely, that with respect to issue no. 1, Complainant was not denied a reasonable accommodation meeting. The Agency maintains that Complainant's Manager (Manager) was unaware during their meeting that Complainant was attempting to request a reasonable accommodation. When Complainant emailed the following day, and indicated that she was interested in a reasonable accommodation, Manager responded that he was unaware that she had a disability and requested that she provide medical documentation to support her request. Soon thereafter, Complainant applied for disability retirement.
With regard to issue no. 2, Manager indicated that he denied Complainant's request for advanced sick leave because of her low leave balance and he did not believe that she would be able to pay it back. With respect to issue no. 3, Manager indicated that the emails sent to Complainant were not meant to harass her and were either requests for information or mistakenly sent to her. He indicated that the emails sent to Complainant were for business reasons. The emails included a request for Complainant's leave slip, which he did not realize that she had already submitted, an email requesting that Postmasters clear their computers, a task that only technical employees are able to do, an email sent to Complainant that was intended for another Postmaster, and, an email requesting an explanation for the use of penalty overtime, when in fact only regular overtime had been used in Complainant's office. Further, regarding issue no. 4, Complainant's FMLA was questioned as her approved leave had expired on September 17, 2008. With respect to issue no. 5, the Manager explained that Complainant was instructed to stay out of the office because she was still on leave related to her surgery, she had complained of occupational stress, and there was an Office of Inspector General investigation involving Complainant underway. Regarding issue no. 6, Manager acknowledged that there was a delay in the processing of Complainant's expense report due to his error but maintained no discriminatory animus was involved.
With regard to issue no. 7, the Manager denied making racist remarks. The Manager explained that he gave a watermelon to an African American employee and asked if the employee liked the gift. Complainant was seated in his office when this question was asked. Complainant maintained that she found his comment racist as the Manager had called the employee Black. As a result, she requested a meeting with Manager on July 22, 2008, to discuss what she believed was his inappropriate and offensive behavior. Complainant requested that a representative be present at the meeting. The denial of a representative is the subject of issue no. 8. The Manager explained that he called a secretary in to witness the meeting and take notes contemporaneously so another representative was not needed. With regard to issue no. 9, the Manager explained that all 15 Postmasters were mandated to work six days without a day off in order to improve their operation numbers and while Complainant maintained that her numbers were good, the Manager was trying to improve the entire district. Finally, with regard to issue no. 10, the Manager indicated that Complainant was not given the end of the year award because she was no longer was on active duty at the Griffith Post Office.
The Agency argued that Complainant failed to show that its actions were based on her protected bases or that its nondiscriminatory reasons were pretext for discrimination. Moreover, the Agency indicated that the incidents complained of by Complainant as harassment were not sufficiently severe or pervasive as to establish a prima facie case of a hostile work environment. Further, with regard to the request for reasonable accommodation, meeting, the Agency argued that once it realized that Complainant was requesting a reasonable accommodation, it asked that Complainant provide medical documentation to support her request. Complainant however, did not provide the medical documentation and did not enter into the interactive process because she applied for disability retirement. Accordingly, no action was taken on her request.
CONTENTIONS ON APPEAL
On appeal, Complainant submitted a substantial brief but makes the same contentions previously made in the underlying case.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
ANALYSIS AND FINDINGS
With respect to issue no. 1, we find that notwithstanding the manager's claim that he was unaware that Complainant was requesting a reasonable accommodation during their meeting; the record indicates that once her request was made clear, a request for medical documentation was made to Complainant. The record also indicates that this request for documentation was not complied with and Complainant shortly thereafter applied for disability retirement.2 Therefore, we find no violation here.3
Issues (2) - (10)
In the instant case, the Commission finds that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, we find that management articulated legitimate, nondiscriminatory reasons for its actions as was discussed above. While we acknowledge that the Manager's actions at times were insensitive, especially with regard to Complainant needing time to deal with her daughter's death, we find that Complainant has not presented any evidence which demonstrates that the Manager's actions were based on her protected bases or that management's nondiscriminatory reasons were pretext for discrimination. Further, we find that Complainant failed to establish a case of harassment as the incidents complained of were not sufficiently severe or pervasive to establish a hostile work environment.4 Accordingly, we find that the preponderance of the evidence supports a finding of no 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 FAD, which found Complainant failed to show that she was subjected to 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
___7/25/12_______________
Date
1 Initially, Complainant had additional claims in her complaint but the claims were dismissed for failure to state a claim. Complainant does not dispute these dismissals, therefore they will not be considered in this appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 9, Sec. IV(A) at p. 9-10 (November 9, 1999) provides that the Commission has the discretion to only review those issues specifically raised on appeal.
2 An employer may ask an individual for reasonable documentation about that person's disability and functional limitations when the disability or need for accommodation is not obvious. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) at 12-13. The Commission has recently held that:
If an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation.
Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012).
3 In reaching this determination, we assumed, for the purposes of this decision only without so finding, that Complainant is an individual with a disability.
4 The Commission has long noted 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.
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0120100826
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100826