0120073496
10-29-2007
Violet B. Koon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Violet B. Koon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073496
Hearing No. 430200700136X
Agency No. 4K270000906
DECISION
Complainant filed an appeal from the agency's June 30, 2007, final
decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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 appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a).
On September 27, 2006, complainant filed an EEO complaint alleging
that she was discriminated against on the bases of disability (bipolar
disorder) and age (D.O.B. 10/14/62) when she was subjected to ongoing
harassment starting in October 2005, and issued a notice of removal,
effective June 10, 2006, from her position of Rural Carrier Associate.
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). Complainant requested
a hearing, but the AJ dismissed the hearing request on the grounds that
complainant failed to submit a pre-hearing report. The AJ remanded the
complaint to the agency, and the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b) concluding that complainant failed to prove
that she was subjected to discrimination as alleged.
At the time of the events at issue, complainant was employed by the agency
in the Lexington, North Carolina Post Office as a Rural Carrier Associate.
The investigative report indicates that despite the investigator's
efforts, complainant failed to submit an affidavit detailing her
claim of discriminatory hostile work environment. Therefore, the only
available information on complainant's allegations is that reported by
the EEO Counselor and what is written on the formal complaint. Briefly,
the record shows that complainant had previously been removed from her
position in July 2005 for unsatisfactory performance/failure to follow
instructions, and improper conduct/falsification of times. Complainant
grieved the matter and was reinstated in October 2005 without back pay.
Since her reinstatement in October 2005, complainant alleged she was
harassed by her supervisor on an ongoing basis when she was told she was
too slow and was not being productive, was told inconsistent directions,
was followed, was given vehicle inspections, and was "yelled" at on the
workroom floor. On May 4, 2006, she was informed that, effective June 10,
2006, she would be removed for unacceptable work performance. Complainant
filed the instant complaint asserting she was harassed and challenging
her removal.
Complainant's supervisor denied any discrimination occurred. She averred
that upon complainant's return to duty in October 2005, she sat down
with complainant and thoroughly explained the performance expectations
to her. She also stated that she assigned a Rural Carrier mentor
to complainant to provide her with some retraining. The supervisor
denied harassing complainant, indicating that she provided her with
the same supervisory instruction and oversight provided to all other
Rural Carriers. The employee assigned to be complainant's mentor also
submitted an affidavit during the investigation, confirming she provided
complainant with refresher training in October 2005. She opined that
complainant did not appear to be interested in her attempts to assist
her by suggesting improved ways of doing her work.
With regard to the removal, the notice of proposed removal indicates it
was for unacceptable work performance. Specifically, the notice indicated
that complainant had been unable to carry her assigned route within
the evaluated time since her return to duty. In addition, management
alleged that in March 2006, complainant was moved to a lighter route,
but still was unable to carry the mail within the allotted time.
In addition, management asserted several customer complaints were
received concerning misdeliveries by complainant. Management stated
that the notice of removal was issued in May 2006 based on complainant's
current performance problems, as well as her prior disciplinary record,
which included a letter of warning, a suspension for unsatisfactory
performance, and the prior removal action.
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").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14,
1995). After a review of the record, the Commission finds that complainant
has not proven, by a preponderance of the evidence, that the agency's
reasons for its actions, including its decision to discharge complainant,
were a pretext for discrimination based on age or disability.1
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will 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
[and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17
(1993).
To establish a prima facie case of hostile environment harassment,
a complainant must show that: (1) s/he is a member of a statutorily
protected class; (2) s/he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (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. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11. In the instant
case, the Commission finds that complainant has not established a link
between her age and alleged disability and the incidents complained of.
Moreover, the incidents, even if true, have not been shown to be
sufficiently severe or pervasive to rise to the level of establishing
a discriminatory hostile work environment.
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 decision finding no discrimination or harassment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 29, 2007
__________________
Date
1 The Commission notes that even assuming complainant is a person with
a disability, the record indicates that her supervisors did not know
about her condition, and complainant is not alleging that she requested
and was denied reasonable accommodation.
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0120073496
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073496