01973641
06-23-1999
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Pamela G. Hasick v. United States Postal Service
01973641
June 23, 1999
Pamela G. Hasick,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01973641
Agency No. 1F-957-1042-94
Hearing No. 370-97-X2128
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning her allegation that the agency discriminated against her in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act
(Act) of 1973, as amended, 29 U.S.C. �791 et seq. Appellant alleged
discrimination on the bases of race (Caucasian), physical disability
(neck and back injury) and retaliation (prior EEO activity), when: (1)
her supervisor (S1) reprimanded her on March 25, 1994, and told her not
to leave her work unit; (2) management failed to take proper action when
it discovered she was verbally abused by a co-worker on February 1, 1994;
and (3) the Manager of Distribution wrongfully denied her overtime on
numerous occasions from October 1993 to January 1995. The Commission
hereby accepts the appeal in accordance with EEOC Order No. 960.001.
For the reasons that follow, the FAD is AFFIRMED.
At the time of the alleged discriminatory events, appellant was employed
as a Distribution Clerk at the agency's Processing and Distribution
Center in Sacramento, California. Believing that she was the victim
of discrimination, appellant sought EEO counseling and, thereafter,
filed a formal EEO complaint. The agency accepted the complaint for
investigation. Subsequently, appellant requested a hearing before an
EEOC Administrative Judge (AJ). Initially, the AJ informed the parties
of her intention to issue findings and conclusions without a hearing,
and permitted both parties an appropriate opportunity for response.
See 29 C.F.R. � 1614.109(e). After a pre-hearing conference on
January 18, 1996, the AJ determined that the agency had not adequately
investigated allegation (3) and remanded the case to the agency. The AJ
further directed the agency to determine whether the issues set forth in
allegations (1) and (2) represented a continuing pattern of harassment.
After completing the supplemental investigation, the agency resubmitted
the Report of Investigation (ROI) to the AJ. During a second pre-hearing
conference the parties informed the AJ that they had reached a settlement
with respect to allegation (3)(the overtime issue). Thereafter, the AJ
concluded that the resubmitted ROI did not disclose whether the agency
considered the continuing pattern of harassment question. Nevertheless,
the AJ determined that the record was sufficient to make a determination
and issued a recommended decision (RD) finding no discrimination.
Thereafter, the agency adopted the RD and issued a FAD, dated April 22,
1997, finding no discrimination. It is from this agency decision that
appellant now appeals. No new contentions were submitted on appeal.
The investigative record reveals that on March 25, 1994, appellant
informed a coworker (C1) that she had made errors in a bundle of mail.
C1 told appellant that she should have given any error-mail to a level 6
technician. Appellant also made comments to S1 concerning C1's errors.
S1 admonished appellant for not following proper procedure and also
advised appellant that she should have given the error-mail to a level
6 technician. Appellant claimed that S1 yelled at her, in front of her
coworkers, to return to her work station and to not leave the work station
again. Nevertheless, there is no record of any formal disciplinary
action taken against appellant as a result of this incident. The record
further reveals that the agency was aware of a verbal confrontation
that occurred between appellant and C1 on February 1, 1994. However,
no evidence was presented to show that any comments made to appellant by
C1 were the result of discriminatory animus or that these comments were
severe or pervasive. Moreover, appellant failed to show that any inaction
on the part of management was prompted by a discriminatory basis.
In her RD, the AJ concluded that allegations (1) and (2) failed to
raise a genuine issue of material fact. Specifically, the AJ reasoned
that appellant was not aggrieved by S1's actions in allegation (1).
Furthermore, the alleged harassment in allegation (2) was not "so severe
and pervasive as to alter the terms and conditions of employment or
[create] an intolerable working condition." Finally, the AJ concluded
that there was no indication of discriminatory animus in either instance.
After careful review of the entire record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
presented the relevant facts, and properly analyzed the appropriate
regulations, policies and laws. The Commission discerns no basis to
disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
6/23/99
______________ ____________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations