01A30590
07-16-2003
Yvette S. Simmons, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yvette S. Simmons v. United States Postal Service
01A30590
07-16-03
.
Yvette S. Simmons,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30590
Agency No. 1J461114895
Hearing No. 240-97-5142x
DECISION
BACKGROUND
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Distribution Clerk at the
agency's Indianapolis, Indiana facility, filed a formal EEO complaint on
September 5, 1995, alleging that she was subject to disparate treatment
and harassment in a hostile work environment on the bases of race
(African-American), sex (female), disability (chronic pelvic pain,
contusion to sacrum), and reprisal for prior EEO activity.
Complainant was assigned to work in the Flats Pay Location 152 operational
area from May 18, 1995 to May 23, 1995. On May 22, 1995, complainant
was given a direct order to go to the medical unit and was charged AWOL
when she opted to go home instead. Because of her insubordination /
failure to follow a direct order, she was issued a notice of removal
on June 1, 1995. Complainant filed a formal complaint on September
5, 1995. At the conclusion of her investigation, complainant requested
a hearing with an Administrative Judge (AJ). Prior to the hearing, the
Administrative Judge remanded the case for supplemental investigation due
to amendments made by complainant. After the supplemental investigation,
and after the complainant failed to request a hearing or receive a final
agency decision, the agency issued a final decision of no discrimination.
Complainant appealed the decision. The Commission vacated and remanded
the case to the AJ because the AJ should have presided over any necessary
supplementation of the record in the hearing process without remanding
it to the agency for additional investigations. Simmons v. United States
Postal Service, EEOC Appeal No. 01A21416 (April 10, 2002).
The hearing was held on August 14 and 15, 2002. In the AJ's decision,
dated September 24, 2002, she concluded that complainant failed
to establish a prima facie case of unlawful harassment based
upon complainant's race, gender, alleged physical disability,
and reprisal. Regarding the claim of disparate treatment, the AJ
determined that complainant failed to demonstrate that the agency's
actions were a pretext for discrimination. The AJ also concluded that
complainant's disabilities did not meet the statutory definitions of
the Rehabilitation Act. The agency's final action implemented the AJ's
decision. On appeal, complainant restates arguments previously made at
the hearing. In response, the agency restates the position it took in
its final action, and requests that we dismiss the appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Disparate Treatment
Although the initial inquiry in a Title VII discrimination case usually
focuses on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983). In this case, the Commission finds that the agency has
articulated legitimate, nondiscriminatory reasons for its action.
Complainant's Acting Supervisor (AS) stated that on May 22, 1995, she
asked complainant to go to the medical office after she and a co-worker
smelled alcohol on complainant's breath. When complainant asked for
a medical slip to see the nurse, the AS said she could not find one,
but that the nurse was expecting her and a slip was unnecessary.
When complainant still refused to go, AS, and another supervisor (OS)
ordered complainant to go to the nurse. An affidavit of a witness
to the incident noted that AS was to escort complainant to the nurse.
AS testified that complainant left the building. The record shows that
proper procedure in a case where the employee does not agree with his
or her supervisor's instructions, is to follow the instructions and then
file a grievance. AS issued AWOL status to complainant for May 22, 1995
because of complainant's actions. Complainant testified that OS gave her
the option to go home. OS, who was not complainant's direct supervisor,
denied this. Although he could not remember this specific incident,
he testified that in such a situation the employee would be removed
from the building for failure to follow a direct order. AS requested
removal of complainant for insubordination and failure to follow a direct
order, as was the agency's policy. This request was concurred to by
her supervisor. Additionally, specifically regarding complainant's
physical disability, complainant stated that her transfer to Flats Pay
Location 152 violated her light duty restrictions.<1> The record shows
that employees on light or limited duty are required to have a letter
stating their restrictions. AS testified that complainant's duties at
Location 152 did not violate complainant's restrictions. Complainant
stated that there were more recent documents limiting her restrictions
further, however complainant also testified that she never showed these
documents to AS or OS. Furthermore, concerning complainant's reprisal
claim, AS and OS testified that they had no knowledge of complainant's
prior EEO activity. Complainant stated that EEO postings regarding
her first action were posted around the entire facility. The record
shows that there was no way for AS or OS to have made the connection
between complainant and the postings. The supervisor who concurred to
complainant's removal did know of complainant's prior activity. However,
as already noted, complainant's removal for insubordination and failure
to follow a direct order is a legitimate, nondiscriminatory reason.
Complainant failed to meet her burden to show that they agency's actions
were motivated by a discriminatory reason. We therefore affirm the
AJ's findings regarding complainant's claim of disparate treatment on
the basis of race, sex, disability and reprisal.
Harassment and Hostile Work Environment
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
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).
Complainant alleged that she was subjected to a hostile work environment
and harassment based on the incidents previously discussed. To establish
a prima facie case of hostile environment harassment, petitioner must
show the existence of four elements: (1) she is a member of a statutorily
protected class; (2) 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 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.
The Commission affirms the AJ's findings regarding complainant's
claims of harassment. The complainant cannot show by a preponderance
of evidence that the harassment she alleged was based on her race, sex,
disability or reprisal.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final order.
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
__07-16-03________________
Date
1For the purposes of analysis, the Commission assumes without finding
that complainant is an individual with a disability within the meaning
of the Rehabilitation Act.