0120072027
12-07-2009
Andrea Massiah, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Andrea Massiah,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120072027
Hearing No. 520-2006-00308X
Agency No. 4A110002306
DECISION
On March 19, 2007, complainant filed an appeal from the agency's February
22, 2007 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 appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Letter Carrier at the agency's Van Brunt Station in New York,
New York. On September 3, 2005, the agency issued complainant a letter
stating that she had been absent without approved leave (AWOL) since
August 14, 2005. The notice directed complainant to submit medical
documentation from her doctor indicating the period of incapacity and
when complainant could return to work. Complainant failed to submit
the requested documentation. On September 24, 2005, the agency issued
complainant a Letter of Warning (LOW) advising her that she had been
AWOL for 112 work hours. The LOW advised complainant that she had
failed to substantiate her absence and that medical documentation she
submitted to the agency's medical unit did not indicate her period of
incapacity nor when she would return. Complainant eventually submitted
the requested documentation and the LOW was rescinded through the union
grievance process.
On October 17, 2005, complainant's manager (M1) approached complainant
while she was casing mail and made the comment "I need you to get the mail
up."1 Complainant replied that she was trying her best. Complainant
alleges that M1 then said "[t]hat is not your best...I'm going to take
care of you." Complainant believed this to be a threat. M1 then stated
that complainant misunderstood him. Additionally, complainant claims
that M1 reprimanded her for being out of uniform on October 12, 2005.
On December 3, 2005, complainant submitted a CA-2 form (Notice of
Occupational Disease and Claim for Compensation) to the agency for M1
to complete. M1 returned the form to complainant without completing
it because complainant failed to fully complete her required section.
Complainant included the missing information and re-submitted it to M1
with a note asking M1 to return it to her after he completed his section
so that she could submit the form along with other paperwork to the Office
of Injury Compensation. On December 21, 2005, complainant received back
only the receipt portion of the form and not the actual form.
On December 25, 2005, complainant filed an EEO complaint alleging that she
was discriminated against and subjected to a hostile work environment on
the bases of race (Black) and disability (Costrochondritis and Asthma)2
when:
1. On September 24, 2005, the agency issued complainant a Letter of
Warning (LOW) for not being regular in attendance from August 13, 2005
until September 1, 2005;
2. On October 12, 2005, complainant was reprimanded for being out of
uniform;
3. On October 17, 2005, complainant's manager (M1) stated that complainant
was not putting forth her best effort in casing the mail and stated to
complainant that he "will take care of you" and,
4. On or about December 10, 2005, M1 delayed the processing of her CA-2
form (Notice of Occupational Disease and Claim for Compensation).
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 timely
requested a hearing. When the complainant did not object, the AJ assigned
to the case granted the agency's October 4, 2006 motion for a decision
without a hearing and issued a decision without a hearing on February
16, 2007. As to claim (1), the AJ found that the agency's request for
a medical note to explain her absence from work does not constitute an
adverse action and therefore complainant failed to establish a prima
facie case of discrimination on the bases of race and/or disability.
The AJ assumed arguendo that complainant had established a prima
facie case of discrimination and found that the agency had articulated
legitimate, nondiscriminatory reasons for its action. The AJ found
that the agency issued the LOW because complainant failed to submit
medical documentation as requested to substantiate her prolonged absence
from work. As to claim (2), the AJ found that complainant had produced
no other testimonial or documentary evidence regarding the uniform
reprimand incident and M2 could not recall reprimanding complainant.
As to claim (3), the AJ found that the comments uttered by M1, without any
accompanying concrete agency action, failed to state a claim of unlawful
employment discrimination. As such, the AJ dismissed claims (2) and (3)
for failure to state a claim. Finally, as to claim (4), the AJ found
that complainant's collateral attack on the processing of her workers'
compensation claim cannot be sustained within the parameters of the
EEO process. Assuming that complainant had a viable claim, the AJ found
that there was no evidence that the agency's administrative handling of
complainant's workers' compensation claim form was in any way motivated
by discriminatory animus. The AJ therefore concluded that complainant
had not been discriminated against as alleged. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the AJ's decision must be overturned
because discovery was not completed. Complainant alleges that the agency
failed to respond to her discovery requests. Additionally, complainant
maintains that she submitted the necessary medical documentation to
the agency's medical unit and not directly to management because she
was concerned about her privacy. Complainant argues that the medical
unit already had the necessary documentation and the only reason she was
asked to submit the documentation again was M1's discriminatory animus.
Additionally, regarding claims (2) and (3), complainant asserts that
fear for her personal safety is sufficient evidence of harassment.
Moreover, complainant avers that had she received the necessary discovery
documents, she would have been able to advance her claim that the agency
failed to act appropriately regarding her workers' compensation form.
Finally, complainant maintains that the workplace was so filled with
discriminatory intimidation, ridicule, and insult, that the terms and
conditions of her employment were altered.
ANALYSIS AND FINDINGS
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").
At the outset, we address complainant's claims that discovery was never
completed and summary judgment was therefore improper. The record
reveals that the AJ's July 6, 2006 Acknowledgement Order indicated that
discovery was to be initiated within 20 calendar days of the Order and
completed within 90 days. The Order also indicated that motions for
summary judgment must be filed no later than 15 days after the close of
discovery and the opposing party would have 15 days from receipt of the
motion to file a response. Complainant, through counsel, did not initiate
discovery until September 8, 2006, well beyond the deadline ordered by the
AJ for initiation of discovery. Complainant contacted the AJ in January
2007 to attempt to force the agency to respond to her discovery requests.
The agency subsequently sent a letter to complainant indicating that
her discovery requests were initiated outside the deadline ordered by
the AJ. On October 4, 2006, the agency motioned for summary judgment.
Complainant failed to submit a response. On February 16, 2007, the AJ
granted the agency's motion for summary judgment and issued a decision
without a hearing. To the extent that the AJ did not require the agency
to answer complainant's untimely discovery requests, we find that he
acted appropriately. See EEO Management Directive 110, at 7-19 (If a
party does not submit a discovery request to opposing party within the
20 day period ordered by the AJ, the AJ may determine that the party has
waived its right to pursue discovery.); see also Sandoval v. United States
Postal Service, EEOC Appeal No. 0120070981 (May 8, 2007). Complainant had
an opportunity to initiate discovery during the appropriate time and
failed to do so. Accordingly, we find no reason to disturb the AJ's
issuance of a decision without a hearing on that ground.
Disparate Treatment
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).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), complainant's
supervisor (S1) asserts that complainant was placed on AWOL because
she had not submitted the proper medical documentation from August
13, 2005 through September 1, 2005. Report of Investigation (ROI),
S1's Aff. at 3. M1 adds that once an employee has a certain number of
unscheduled absences, some type of action needs to be taken. ROI, M1's
Aff. at 3. M1 emphasizes that complainant was issued the LOW because
she was previously instructed to submit the proper medical documentation
substantiating her absences and failed to do so. Id. at 4. As to claim
(2), M1 maintains that he does not recall reprimanding complainant for
being out of uniform, but he constantly verbally reprimands employees
when they are out of uniform. Id. As to claim (3), M1 denies telling
complainant that he would "take care" of her; rather, he claims that he
informed complainant that her poor office performance would be addressed
with the union steward the following day. Id. at 6. As to claim (4),
M1 asserts that when he received complainant's CA-2 form initially,
she had not fully completed the employee's section. Id. M1 avows
that when he received the completed form, he completed his section
and forwarded the form to the Injury Compensation Office in accordance
with their instructions. Id. M1 asserts that he has completed CA-2
forms for other employees and it has always been his practice to send
the completed forms to Injury Compensation and not the employee. Id.
M1 maintains that the process was delayed because complainant initially
submitted an incomplete form to him. Id.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this by
showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). As to
claim (1), notwithstanding complainant's privacy concerns, evidence in the
record reveals that the submitted medical documentation was insufficient
as it failed to indicate that complainant was incapacitated from working.
The LOW was issued after complainant failed to submit the requested
documentation. Further, aside from complainant's bare assertions,
the record is devoid of any persuasive evidence that discrimination
was a factor in any of the alleged incidents in claims (2) and (3).
Finally, as to claim (4), the record illustrates that any delay in
the processing of complainant's workers compensation claim was not
the result of discriminatory animus by M1, rather it was complainant's
initial failure to fully complete the form. Accordingly, we find that
complainant has presented no evidence establishing that the agency's
reasons are pretextual. At all times, the ultimate burden of persuasion
remains with complainant to demonstrate by a preponderance of the evidence
that the agency's reasons were not the real reasons, and that the agency
acted on the basis of discriminatory animus. Complainant failed to
carry this burden.
Harassment/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
[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).
In the instant case, we find that complainant has failed to show that
she was subjected to a hostile work environment on the bases of race
and disability. Viewing the record in the light most favorable to
complainant, we find that there is nothing in the record that would
establish that complainant's protected classes more likely than not
played a part in any of the agency's actions. Even accepting as true
complainant's allegation that the environment was hostile, the record
does not support a finding of discriminatory hostility. Accordingly,
complainant has not shown that she was subjected to a hostile work
environment on the alleged bases.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
December 7, 2009
Date
1 At points in the record, the date of this incident was incorrectly
cited as October 12, 2005. Complainant's original complaint lists the
date of this incident as October 17, 2005.
2 We note that the EEO investigator included sex as a basis for
discrimination as a result of complainant raising it for the first time
in her affidavit response. The AJ declined to address this basis as
complainant had not motioned to include this basis in her complaint.
Complainant failed to raise this issue on appeal and therefore we decline
to address it herein.
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0120072027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072027