0120120212
06-21-2013
Yolanda Lee, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Yolanda Lee,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120120212
Hearing No. 551-2011-00007X
Agency No. 1E-981-0026-09
DECISION
On October 7, 2011, Complainant filed an appeal from the Agency's September 2, 2011, 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., 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). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly determined that Complainant had not established that she was discriminated against and harassed as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Seattle Processing and Distribution Center (P&DC) in Seattle, Washington. On July 14, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and disability (knee and back) when:
1. Her supervisor did not treat her with dignity and respect;
2. She was taken off the work room floor because of her light-duty status and was told there was no work for her;
3. She was skipped over for prime-time vacation choices;
4. She was not permitted to correct her vacation choice;
5. She was not allowed to work the holiday;
6. She was not scheduled to work while on light duty;
7. She was denied a day off that she requested;
8. She was forced to work a holiday;
9. She was not allowed to resubmit requests for days off;
10. She was given a bad safety-work evaluation;
11. Her supervisor refused to correct her job offer despite the complainant's
numerous requests;
12. She was given a bad work-performance evaluation;
13. Her supervisor constantly checks his watch when she returns from break and
watches and follows her;
14. She was given a bad evaluation on her attendance;
15. She was given an official discussion for clocking in .11 units early; and
16. She was subjected to hostile and verbally aggressive behavior from her
supervisor.
Initially, the Agency dismissed Complainant's complaint, finding that it failed to state a claim because the claims were vague and lacked the specificity required, noting that the complaint did not contain any dates of incidents alleged. In Lee v. U.S. Postal Service, EEOC Appeal No. 0120100473 (April 20, 2010), the Commission reversed the Agency's dismissal. We found that Complainant had sufficiently alleged that she had been subjected to adverse actions, and that she had stated a cognizable claim of harassment. The complaint was remanded for the Agency to conduct an investigation into Complainant's claims.
During the investigation, the Agency developed Complainant's claims with more specificity based on her affidavit responses. A more complete articulation of Complainant's complaint is that she claimed discrimination and harassment based on race, color, sex, and disability when:
1. On various dates between August 9, 2008, and April 3, 2009, her supervisor (Supervisor of Distribution) refused to correct her job offer despite Complainant's numerous requests;
2. On October 31, 2008, she was denied a day off that she requested;
3. On November 10, 2008, she was forced to work a holiday;
4. On December 8, 2008, March 6, 2009, and April 4, 2009, and on or around April 1, 2009, when she was given an official discussion for clocking in .11 units early, her supervisor did not treat her with dignity and respect/she was subjected to hostile and verbally aggressive behavior from her supervisor (combination of prior Issues 1, 15 and 16);
5. On December 31, 2008, January 1, 2009, and February 13, 2009, she was not allowed to work the holidays/was not scheduled to work while on light duty (combination of prior Issues 5 and 6);
6. On February 11, 2009, she was given a bad safety-work evaluation;
7. On several dates between February 23, 2009, through April 18, 2009, she was taken off the work room floor because of her light-duty status and was told there was no work for her;
8. On or around March 6, 2009, she was skipped over for prime-time vacation choices and was not permitted to correct her vacation choice (combination of prior Issues 3 and4);
9. On or around May 11, 2009, she was given a bad evaluation on her attendance;
10. On August 22, 2009, she was given a bad work-performance evaluation; and
11. On unspecified dates, her supervisor constantly checked his watch when she returned from break and watched and followed her.
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. On July 19, 2011, the AJ dismissed Complainant's hearing request on the grounds that she failed to prosecute her complaint, failed to respond to discovery requests, and ignored the AJ's previous Order. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency issued a final agency decision in which it concluded that Complainant had not established that she had been subjected to a pattern of harassment based on her claimed protected classes. It first found that Complainant had shown that she was a qualified individual with a disability. The Agency found that with respect to (revised) issues 5 and 7, Complainant had not established that the Agency failed to accommodate her physical limitations. It also found that Complainant had been provided with a light-duty assignment within her restrictions (issue 1), and that it had not failed to accommodate her. With respect to Complainant's claim of harassment, Complainant had not alleged any timely discrete acts which would need to be analyzed under a disparate treatment framework. The Agency found that Complainant belonged to the protected classes claimed in her EEO complaint. It concluded, however, that she had not shown that any of the Agency's actions were taken based on her race, color, sex, or disability, and that she had not shown that any of the actions were severe or pervasive such that a legally hostile work environment existed.
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her argument in support of her appeal, Complainant stated that she disagreed with the Agency's decision. She stated that she felt she was harassed and that she was "not treated with dignity and respect." The Agency submitted a brief in opposition to Complainant's appeal in which it urged the Commission to affirm its final decision.
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 Chap. 9, � VI.A. (Nov. 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
Some of the events in this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because these matters occurred in 2008 and 2009, the Commission would need to use the analytical framework as it existed both before and after the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability. However, we find that this is not necessary, as we assume, for the purposes of analysis only and without so finding, that Complainant is a qualified individual with a disability.
To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she 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 complainant's 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. 903-905 (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 find that Complainant satisfies the first prong of a showing of a claim of hostile work environment and harassment in that she belongs to each of the claimed statutorily protected classes. Complainant was subjected to Agency actions which she found to be unwelcome. After a thorough review of the record, we find however, that Complainant has not established that the Agency took each of the actions alleged in Complainant's complaint because of her race, color, sex, or disability. Other than her conclusory statements to this effect, Complainant has not offered any evidence which could support a finding that her supervisor was motivated by animus towards any of Complainant's claimed protected classes. We also find that Complainant has not shown that any of the Agency's actions were so severe or pervasive such that a legally hostile work environment existed.
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 determination that Complainant was not discriminated against as alleged.
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
June 21, 2013
Date
2
0120120212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120212