01A14949
03-12-2002
Annie L. Ivey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Annie L. Ivey v. United States Postal Service
01A14949
March 12, 2002
.
Annie L. Ivey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01A14949
Agency No. 1-K-204-0034-99
Hearing No. 120-A1-4101X
DECISION
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.; the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that, during the relevant period, complainant was
employed as a PS-5, Clerk at the agency's Bulk Mail Center, Tour 3,
Southern Maryland Processing and Distribution Center in Capital Heights,
Maryland. Complainant filed a formal EEO complaint on January 6, 2000,
alleging that the agency had discriminated against her on the bases
of race (African-American), sex (female), religion (Baptist), color
(black), disability (post-traumatic stress disorder), age (DOB: 8/4/56),
and reprisal (prior EEO activity)<2> when:
(1) on July 26, 1999, she was denied the opportunity to be a dock clerk
and to be trained as a 204-B (i.e., acting supervisor);
on August 22, 1999, the manager of operations (M1) blatantly laughed
about complainant's status as a disabled American veteran (DAV); and
on August 22, 1999, complainant's supervisor scrutinized complainant's
work.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On April 30, 2001, the AJ first heard oral arguments from
both parties and then issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination with regard to being denied the opportunity to be a
dock clerk and to be trained as a 204-B. The AJ further concluded that
complainant failed to demonstrate that similarly situated employees not
in complainant's protected classes were treated more favorably under
similar circumstances. In point of fact, all of the comparators cited
by complainant are members of her protected classes. In addition, the
AJ found that complainant failed to provide any evidence that the agency
was motivated by discriminatory animus and/or retaliatory motive.
With regard to incidents two and three, the AJ concluded that even if
the incidents occurred as alleged by complainant, standing alone they
did not rise to an actionable level of harassment. The AJ also found
that no terms or conditions of complainant's employment was affected
by the alleged actions. Accordingly, the AJ concluded that complainant
failed to state a claim with regard to these incidents.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Although the initial inquiry of discrimination in a 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.<3>
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
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).
After a careful review of the record, we find that the AJ correctly
concluded that complainant failed to establish a prima facie case of race,
color, sex, religion, age, disability and/or reprisal discrimination with
regard to the agency's denial of the opportunity to be a dock clerk or to
receive 204-B training. The Commission also notes that, even assuming,
arguendo, complainant did establish a prima facie case of discrimination,
the agency articulated legitimate nondiscriminatory reasons for its
actions. In reaching this conclusion, we note that the record indicates
that complainant had a poor safety record and attendance difficulties.
The Commission also finds that complainant failed to proffer evidence
that other similarly situated employees were treated more favorably.
In regard to the alleged harassment, the Commission has repeatedly found
that unless the conduct is very severe, a group of isolated incidents will
not be regarded as creating a hostile work environment. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996). A supervisor's remarks on several occasions unaccompanied by any
concrete action are usually not sufficient to state a claim of harassment.
Backo v. United States Postal Service, EEOC Request No. 05960227 (June
10, 1996). In the instant case, even assuming that the incidents occurred
as alleged, complaint challenges isolated incidents which are not severe
enough to state a claim of harassment. See, e.g., Zhang v. United States
Postal Service, EEOC Request No. 05940481 (July 17, 1998).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
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
March 12, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 The record indicates that complainant participated in prior protected
activity, but it is unclear under which statute such activity occurred.
3 Because we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions, we do not reach the issue of
whether complainant is a qualified individual with a disability.