01993964
03-06-2002
Beverly J. Berg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area) Agency.
Beverly J. Berg v. United States Postal Service
01993964
March 6, 2002
.
Beverly J. Berg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area)
Agency.
Appeal No. 01993964
Agency Nos. 4-I-553-1066-94; 4-I-553-1081-95; 4-I-553-1087-95
Hearing Nos. 260-98-7040X; 260-98-7041X; 260-98- 9189X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaints 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.
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 complainant, a City Letter Carrier at the
agency's Powderhorn Station in Minneapolis, Minnesota, filed formal EEO
complaints on June 11, 1996 and June 7, 1994, alleging that the agency
had discriminated against her on the bases of sex (female), disability
(perceived mental illness), and reprisal for prior EEO activity when:
(1) she was harassed by a co-worker from January to March 1994;
(2) the EEO office impeded the processing of her EEO complaint; and
the EEO office changed its policy regarding access to Rosters Bulletins.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to established a prima facie case
of discrimination based on gender, a perceived disability or based on her
prior EEO activity because she failed to establish that her co-worker
(E1) harassed her based on her protected classes or that a similarly
situated employee, not in complainant's protected class, was treated
differently. She further found that complainant failed to show E1's
actions created a hostile work environment or that his conduct was so
severe as to constitute harassment.
Even assuming the complainant had established a prima facie case, the
AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ found that on receiving a report that
complainant was subjected to harassment by E1, the agency took appropriate
steps to correct E1's behavior and to prevent similar conduct in the
future. More specifically, the AJ found that the agency performed an
investigation of the incident in which E1 threatened to slap complainant
and called her a derogatory name, and took statements from other employees
in the vicinity. She further found the agency issued discipline in the
form of a letter of warning to E1 and referred E1, as well as complainant,
to the Employee Assistance Program (EAP) for counseling. In addition,
the AJ found evidence that the agency called in a Violence and Behavior
Task Force to investigate the matter and to make recommendations about
preventing future incidents. The agency, the AJ determined, followed
the recommendations of the Task Force by conducting periodic service
talks stressing that altercations and threats would not be tolerated,
by requiring that supervisors and union stewards attend an anti-violence
training and by posting an agency statement indicating a zero tolerance
for violence in the workplace.
The AJ further found that complainant was not referred to EAP for
reasons related to her sex, perceived disability or reprisal but rather
based on the agency's effort to prevent future altercations between the
employees involved. The AJ decided that there was evidence complainant
provoked the incident in question and that complainant admitted many of
her co-workers did not like her. For these reasons, the AJ concluded
that complainant failed to establish by a preponderance of the evidence
she was subjected to unlawful harassment.
As to the claim that the processing of her EEO complaint was intentionally
delayed and that she was denied access to her complaint file, the AJ
found that there was no evidence complainant's complaint was handled any
differently than other complaints pending in the agency's office.<2>
Instead, the evidence tended to show that other complaints pending in
the agency's EEO office were delayed in processing due to the shortage
of staff and a backlog of cases.
The AJ found that the agency presented legitimate non-discriminatory
reasons why its Rosters Bulletins, containing information about personnel
actions, the hiring of employees, promotions and vacancies, were removed
from the EEO office and not made available to employees. The agency
credibly stated, in the AJ's view, that the information was available
through the agency's computerized data base and that complainant's
lengthy visits to view the Bulletin compromised other employees' privacy
and confidentiality needs. The AJ further found that complainant did
not show she was subjected to different treatment on any of her alleged
bases because the policy removing the Bulletins applied to all employees
who visited the EEO office and not just complainant.
The agency's final decision implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were in retaliation for her prior EEO activity or were motivated by
discriminatory animus toward complainant's gender or perceived disability.
In order to prove a claim of harassment complainant must show that the
harassment would not have occurred 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 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, complainant alleged one specific incident in which
E1 called her a derogatory name and threatened to slap her. There were
no other incidents cited to in the record as further evidence of E1's
harassment of complainant or evidence that tended to show his behavior
was based on complainant's protected status. Therefore, without more,
complainant failed to establish she was subjected to a hostile work
environment that was so severe or pervasive as to alter her working
conditions. Rather the evidence tended to show, complainant was partially
responsible for the incident in question by her own actions in instigating
a confrontation with E1 at his work station.
Specifically regarding complainant's disability claim, she alleged she was
subjected to discrimination based on her perceived disability because her
supervisors perceived that she was emotionally unstable. Although there
was some evidence in the record that complainant had been required to
submit to a fitness for duty examination because of emotional instability
in the past, there was no evidence in the record, that E1's statements
or actions were related to a perceived mental disability. Even assuming
complainant's contention that she was perceived as mentally disabled
was correct, she failed to demonstrate that E1's actions were based on
this factor or that her supervisors treated her differently because they
perceived her as disabled. Similarly, complainant failed to show that
the processing of her EEO complaint or the alleged denial of access to
Roster Bulletins was based on a perception that she was mentally disabled.
The complainant claimed the agency's treatment of her was based on
reprisal for her prior EEO activity in 1993. In this regard, she
must show she engaged in protected activity such as the filing of
a complaint of discrimination, that her supervisors were aware of
her protected activity, that she was subjected to adverse treatment
and that the adverse treatment was based on her protected activity.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000). Complainant established she engaged in protected
activity, that her supervisors were aware of her protected activity,
and that she was subjected to adverse treatment in the form of being
referred to EAP. As stated before, however, complainant's referral to
EAP was based on evidence which showed that complainant was responsible
at least in part for instigating a confrontation with E1. In addition,
the evidence established that complainant filed an EEO complaint in 1993,
the year before the altercation in question but two years before each
of the other incidents involving the agency's EEO office. There was no
evidence that there was a nexus or connection between her filing an EEO
complaint in 1993 and the altercation with E1 in 1994 or the incidents
that allegedly took place in the agency's EEO office in 1996. Therefore,
complainant failed to prove by a preponderance of the evidence that she
was discriminated against in retaliation for her protected activity.
For these reasons, the Commission finds the AJ's finding of no
discrimination was based on substantial evidence in the record and
there being no persuasive argument presented on appeal to the contrary,
we affirm the agency's final decision.
CONCLUSION
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'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 6, 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.
2Our regulations provide that claims concerning the processing of an EEO
complaint are not actionable and should be dismissed. 29 C.F.R. �1614.107.
The EEOC Management Directive 110 (MD 110) requires that such issues
be raised directly with the agency's EEO director but if not resolved,
may be raised before the AJ during the hearing. EEOC MD 110 at Chapter
5-25 (as revised 11/9/99). There was some evidence complainant had
written a letter to the EEO office regarding the delay in processing of
her complaint but there was no indication that the issue was resolved
administratively.