01994325_r
11-16-1999
Barbara A. Reisinger, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara A. Reisinger, )
Complainant, )
) Appeal No. 01994325
v. ) Agency No. 4-B-140-0029-98
) Hearing No. 160-99-8041X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
)
DECISION
Complainant timely initiated an appeal from an agency's final action
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of reprisal (prior EEO activity)
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq.<1> Complainant alleges that she was discriminated
against when she was subjected to hostile work environment harassment
that included the following factual allegations:
On November 6, 1997, a co-worker commented to complainant about the
weather;
On November 22, 1997:
A co-worker's radio was played loudly;
Complainant's supervisor made loud comments about complainant's
productivity, and her radio complaints; the supervisor suggested that
complainant bid for a position out of the zone; and
On November 22 and 24, 1997, complainant was denied volume overtime.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's final action is AFFIRMED.
The record reveals that complainant, a PS-6 Carrier Technician at Zone
18 of the agency's Post Office in Rochester, New York, filed a formal
EEO complaint with the agency on February 10, 1998, alleging that
the agency had discriminated against her as referenced above. At the
conclusion of the investigation, complainant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Pursuant to 64 Fed. Reg. 37,644, 37,657 (1999) (to be codified
at 29 C.F.R. �1614.109(g)), the AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination concerning each issue alleged because she failed to
establish any causal connection between her prior EEO activity and the
harassment alleged. The AJ also discussed whether complainant abused
the EEO process by filing numerous, frivolous complaints, and noted
that another case, presently on appeal to the Commission (EEOC Appeal
No. 01986276), found, inter alia, that complainant had established
a pattern of abuse. The agency's final action implemented the AJ's
decision.
On appeal, complainant contends that the AJ erred when he failed to
accept her sworn statement as true. Further, complainant argues that her
witnesses were not interviewed during the investigation. In response,
the agency requests that the Commission affirm its final action, or
dismiss the complaint for abuse of process.
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws.
The Commission finds that complainant failed to establish a
prima facie case of retaliation. To establish a prima facie case,
complainant must present evidence which, if not rebutted, would support
an inference that the agency's actions resulted in discrimination.
Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Where reprisal
is at issue, complainant may establish a prima facie case by showing
that she engaged in protected EEO activity, that the official identified
in her complaint was aware of that activity, and that complainant was
subjected to an adverse connection between the two events. See Fodale
v. Department of Health and Human Services, EEOC Request No. 05960344
(Oct. 16, 1998); Frye v. Department of Labor, EEOC Request No. 05940764
(Dec. 15, 1994); Hochstadt v. Worcester Found. for Experimental Biology,
425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976).
In the present case, the responsible agency official (supervisor) admits
that complainant informed her about complainant's EEO history prior
to the occurrence of the allegations. However, the supervisor denies
knowledge of complainant's EEO history through any other source. Further,
the Commission finds no causal connection between the incidents alleged
and the supervisor's knowledge of complainant's prior EEO activity.
Even assuming that complainant's established an inference
of discrimination, the agency has established a legitimate,
non-discriminatory reason for its actions. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248 (1981) (the burden shifts to the
defendant to articulate a legitimate, non-discriminatory reason for
its actions); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Regarding allegation (2), the supervisor explained that she instructed
complainant's co-worker to turn-off his radio after complainant
complained, and instructed complainant that since she had been bumped to
a walking route by a more senior employee, she should consider bidding
to a different zone if she wanted a driving/mounted route. Regarding
allegation (3), the record reveals that complainant received .97 units
(57 minutes) of overtime on November 22, 1998, and .62 units of overtime
on November 24, 1998. The supervisor, in her affidavit, explained that
complainant complained that her feet hurt and that she could not move
fast enough. Also, the supervisor stated that complainant was working
slow - she only took out fourteen (14) feet of mail on November 22, 1998,
and curtailed ten (10) feet of mail.<2> The Commission finds that the
agency articulated legitimate, nondiscriminatory reasons for the actions
in question.
After the agency presents a legitimate, nondiscriminatory reason for
its actions, the burden of production returns to complainant, to prove
that the agency's articulated reason was a pretext to mask unlawful
discrimination. See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant has presented no credible evidence to suggest that
the agency's articulated nondiscriminatory reasons were pretextual.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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 the 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 the 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 the 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. 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 (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:
November 16, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ date
__________________________
clerk
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Curtailed mail is mail that was assigned but not processed on the
same day.