01975731_correct
01-21-2000
Beverly Clayton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Beverly Clayton, )
Complainant, ) Appeal Nos. 01975731
) 01983273
v. )
) Agency Nos. 4D270108196
William J. Henderson, ) 4D270110786
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Complainant timely appeals two final agency decisions<1> concerning her
complaints of unlawful employment discrimination, in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,
et seq.<2> These appeals are accepted in accordance with EEOC Order
No. 960.001.
ISSUE PRESENTED
Complaint 1 (Appeal Number 01975731)
Whether complainant has demonstrated by a preponderance of the evidence
that the agency discriminated against her on the bases of her race
(Caucasian), disability (tendinitis, bursitis and intestinal disorder)
and reprisal (prior EEO activity) when on February 22, 1996, she was
issued a Letter of Warning for failure to follow instructions.
Complaint 2 (Appeal Number 01983273)
Whether complainant has demonstrated by a preponderance of the evidence
that the agency discriminated against her on the bases of her race
(Caucasian), color (white), disabilities (tendinitis, bursitis and
intestinal disorder), sex (female) and reprisal (prior EEO activity)
when on April 9, 1996, she was required to serve an additional seven
days of suspension.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's Chapel Hill, North
Carolina facility. On December 7, 1995, complainant, her supervisor
(SV) and the president of her union had a meeting concerning unauthorized
overtime and clocking in early for work. After the December meeting on
through January 1996, complainant continued to clock in early for work.
The SV recorded nineteen occasions where complainant clocked in early.
On February 22, 1996, the SV issued complainant a Letter of Warning
(�LOW�) for failing to follow instructions. Complainant contacted an
EEO counselor on February 22, 1996 regarding the LOW.
Also on February 22, 1996, complainant received a Notice of Suspension
(�NOS�) stating that she failed to be regular in her attendance when
she used 132.2 hours of unscheduled leave between September 7, 1995
and January 26, 1996. Complainant's Notice of Suspension was titled
�Notice of Suspension of 14 Days or Less� and stated that �[y]ou are
hereby notified that you will be suspended for a period of (14) fourteen
calender days beginning on March 9, 1996, at your normal reporting time.
You are to return to duty on March 16, 1996, at your normal reporting
time.� Complainant served the suspension as specified by the Notice.
On April 9, 1996, complainant received an Amended Notice of Suspension
explaining that her suspension was for fourteen days, but the original
Notice only specified a period of seven days for the suspension.
As a result, complainant was informed that she would have to serve the
remaining seven days of her suspension. Complainant sought EEO counseling
on April 10, 1996 regarding the additional seven days of suspension.
On September 29, 1996, complainant filed two formal complaints.
Complainant alleged in Complaint 1 that the SV issued the LOW as a means
to harass her. Complainant stated that she clocked in early because
it was the busiest time of the year and work was extremely heavy.
She further stated that others clocked in early during the same period
and did not receive any discipline. As for Complaint 2, complainant
contended that she served the seven day suspension as prescribed by the
NOS and that the attempt to require her to serve an additional seven
days was punitive and substantiated her charge of harassment.
By separate notices both dated March 28, 1997, the agency informed
complainant that each of her complaints had been accepted for
investigation. At the conclusion of the investigation, the agency
forwarded copies of each investigative report to complainant explaining
that she could request a hearing before an EEOC Administrative Judge
within 30 days or receive a final agency decision (FAD) without a hearing.
After complainant failed to request a hearing, the agency issued separate
FADs on June 18, 1997.
In the FAD for Complaint 1, the agency first found that complainant
failed to establish prima facie cases of race discrimination because
she failed to show that any similarly situated employee was treated
more favorably. The agency then concluded that complainant failed to
establish a prima facie case of reprisal discrimination because she
did not show a nexus between her prior EEO activity and the alleged
discriminatory action. Last, the agency found that complainant failed
to establish a prima facie case of disability discrimination because she
did not present any documentation to support a physical disability or,
assuming she was disabled, to show that she was treated less favorably
than other employees outside her protected group. The FAD for Complaint
2 basically made the same findings as the first FAD except that it found
in addition that complainant failed to establish a prima facie case of
sex discrimination because she failed to show that any similarly situated
employee was treated more favorably. It is from these decisions that
complainant now appeals. The agency requests that we affirm both FADs.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII or
Rehabilitation Act case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981)(burdens of
proof in disparate treatment claims brought pursuant to Rehabilitation Act
are modeled after those used in Title VII). Complainant has the initial
burden of establishing a prima facie case of discrimination. McDonnell
Douglas, at 802. If complainant meets this burden, then the burden shifts
to the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Complainant must then prove, by a preponderance
of the evidence, that the legitimate reason articulated by the agency
was not its true reason, but was pretext for discrimination. Id. at 256.
I. Title VII Claims
A. Race and Sex Discrimination
1. Prima Facie Case
Complainant can establish a prima facie case of race or sex discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). In general, to establish a prima facie case
of discrimination based on a Title VII disparate treatment claim,
complainant must show that she belongs to a statutorily protected
class and that she was accorded treatment different from that accorded
persons otherwise similarly situated who are not members of the class.
Comer v. Federal Deposit Insurance Corporation, Request No. 05940649
(May 31, 1996)(citing Potter v. Goodwill Industries of Cleveland, 518
F.2d 864, 865 (6th Cir. 1975)).
In order for two or more employees to be considered similarly situated,
all relevant aspects of the employees' work situation must be identical
or nearly identical. Godby v. Department of the Treasury, EEOC Request
No. 05960220 (May 7, 1998)(citing Smith v. Monsanto Chemical Co.,
770 F.2d 719, 723 (8th Cir. 1985). Thus, in order to be similarly
situated, comparative employees must have reported to the same
supervisor, been subjected to the same standards governing discipline,
and engaged in conduct similar to complainant's without differentiating
or mitigating circumstances. Jones v. Department of the Interior,
EEOC Request No. 05950175 (June 7, 1996)(citing Mazzella v. RCA Global
Communications Inc., 642 F. Supp. 1531 (S.D.N.Y. 1986), aff'd, 814 F.2d
653 (2nd Cir. 1987).
In this case, there is no evidence that any similarly situated employee
received more favorable treatment than complainant. In addressing
Complaint 1, the SV stated that all of the station employees were
instructed not to clock in early without the permission of a supervisor
and that complainant was the only employee with material discrepancies
after the notification. The SV also submitted prior LOWs issued to other
station employees outside complainant's protected groups for violation
of other workplace rules. As for the suspension, the SV stated that,
prior to this action, he had never suspended an employee. Therefore,
he had never had to amend a suspension. Moreover, he stated that the
additional seven days of suspension was not punishment, but a clerical
correction of the original notice which sat out only seven days of
suspension instead of the prescribed fourteen. In light of the foregoing,
the Commission finds that complainant has not established a prima facie
case of disparate treatment in either of her cases because she failed to
present evidence illustrating that she was accorded treatment different
from that accorded employees otherwise similarly situated who are not
members of her protected groups.
B. Reprisal
As to complainant's reprisal claim, in accordance with the burdens
set forth in McDonnell Douglas, and Hochstadt v. Worcester Foundation
for Experimental Biology, 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs,
EEOC Request No. 05960473 (November 20, 1997) complainant may establish a
prima facie case of reprisal by showing that: (1) she engaged in Title VII
protected activity; (2) the agency was aware of her protected activity;
(3) subsequently, she was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
action. We agree with the agency that, while complainant establishes the
first, second and third prongs, she fails to demonstrate the necessary
causal link to her prior EEO action. Other than her belief that this
action was taken in reprisal, complainant has not offered any argument
or evidence to show that the agency's action was in retaliation for her
prior EEO activity or that the SV was motivated by such considerations.
In view of the lack of evidence, the Commission finds that complainant
has not established a prima facie case of reprisal discrimination.
C. Harassment
Complainant also alleges she was subjected to a Title VII-based hostile
environment and harassment.<3> The harassment of an employee that
would not occur but for the employee's race, color, sex, national
origin, age, disability, or religion is unlawful if it is sufficiently
patterned or pervasive. Wibstad v. United States Postal Service,
EEOC Appeal No. 01972699 (Aug. 14, 1998)(citing McKinney v. Dole, 765
F.2d 1129, 1138-39 (D.C. Cir. 1985)). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6. The Supreme Court
stated: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993).
Complainant presents no evidence that any of the above-mentioned
actions were objectively offensive, abusive or hostile, and otherwise
taken in order to harass. In this respect, we note that a reasonable
person in complainant's position may find the disciplinary actions
frustrating. However, she presented no credible evidence to demonstrate
that the discipline was unjust, abusive, offensive or hostile.
Unless it is reasonably established that the actions were somehow
abusive or offensive, and were taken in order to harass complainant
on the basis of any of her protected classes, such discipline cannot
be considered sufficiently severe or pervasive so as to offend the
general sensibility of an individual experiencing such occurrences in
the workplace. Therefore, we conclude that the conduct alleged, either
individually or as a whole, was not sufficiently severe or pervasive so
as to constitute a hostile environment on any of complainant's alleged
bases. We find that the substance of complainant's allegations concerns
legitimate disciplinary actions.
II. Rehabilitation Act Claims<4>
Under the Commission's regulations, an agency is required to make
reasonable accommodations for the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. � 1630.2(o)
and (p). A "person with a disability" is one who: 1) has a physical or
mental impairment that substantially limits or restricts one or more of
his or her major life activities; 2) has a record of such impairment;
or (3) is regarded as having the impairment. 29 C.F.R. � 1630.2(g).
Major life activities include functions such as self care, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 29 C.F.R. � 1630.2(i).
To establish a prima facie case of disability discrimination, complainant
must show that: (1) she is an individual with a disability as defined
in 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with
a disability as defined in 29 C.F.R. � 1630.2(m); and (3) the agency
took an adverse action against her. Cansino v. Department of the Army,
EEOC Request No. 05960674 (Aug. 27, 1998)(citing Prewitt, supra).
As to whether complainant is an individual with a disability, the
only evidence of record concerning her disability is a letter from the
Department of Labor, Office of Workers' Compensation Programs(�OWCP�)
accepting her claim for occupational illness due to her tendinitis
and bursitis. However, this evidence does not establish that she is an
individual with a disability as defined by the Rehabilitation Act because
there is no evidence that she was substantially limited in one or more
major life activities or that her condition was permanent or long term
in nature. See 29 C.F.R. � 1630.2(g). While aware of complainant's OWCP
claim, the SV stated that he never perceived her as disabled and did not
discipline her because of a disability. Since the record lacks sufficient
evidence to show that complainant is an individual with a disability,
the Commission finds that she failed to establish a prima facie case of
disability discrimination. Even had complainant established a prima
facie case, as stated above, the Commission finds that the agency has
shown that the discipline in question was motivated by legitimate reasons
without any prohibited discriminatory intent.
CONCLUSION
Accordingly, based on a thorough review of the record, and for the
foregoing reasons, we AFFIRM the agency's final decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
January 21, 2000
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant 1 This decision consolidates appeal numbers
01975731 and 01983273 both filed on July 18, 1997.
2 On 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.
3 The agency failed to address her harassment allegation in its FAD.
4 Pursuant to the Rehabilitation Act Amendments of 1992, the Americans
with Disabilities Act's employment standards apply to all non-affirmative
action employment discrimination claims filed by federal applicants or
employees with disabilities under Section 501 of the Rehabilitation Act.
Pub. L. No. 102-569 � 503(b), 106 Stat. 4344 (1992)(codified as amended
at 29 U.S.C. � 791(g)(1994)).