0120071070
12-22-2009
Brenda J. Diggs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Brenda J. Diggs,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120071070
Hearing No. 220-2005-00161X
Agency Nos. 4C-440-0182-04, 4C-440-0055-05, & 1C-441-0051-05
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination.
BACKGROUND
The record reveals that, during the relevant time, complainant was
employed as an Occupational Health Nurse at the agency's facility in
Cleveland, Ohio. Believing that she was victim of discrimination,
complainant sought EEO counseling and subsequently filed three formal
complaints, which the agency consolidated for joint processing.
In the first complaint (Agency No. 4C-440-0182-04), complainant
alleges that she was subjected to discrimination on the bases of race
(African-American) and in reprisal for prior EEO activity when:
1. On March 15, 2004, complainant was issued a Seven (7) Day Suspension.
In the second complaint (Agency No. 4C-440-0055-05), complainant alleges
that she was subjected to a hostile work environment on the bases of race
(African-American) and in reprisal for prior EEO activity when:
2. On October 18, 2004, October 21, 2004, November 3, 2004, and November
8, 2004, management accused complainant of inappropriate time management.
3. On November 2, 2004, management asked complainant to submit to a test
cup demonstration.
4. On December 7, 2004, management issued complainant a Fourteen (14)
Day Suspension.
5. On December 9, 2004, management questioned complainant repeatedly as
to her whereabouts on December 8, 2004.
In the third complaint (Agency No. 1C-441-0051-05), complainant
alleges that she was subjected to discrimination on the bases of race
(African-American) and in reprisal for prior EEO activity when:
6. Between February 8, 2005 and April 20, 2005, complainant was subjected
to harassment regarding the performance of her work duties and denied
training.
7. On June 2, 2005, complainant was issued a Letter of Removal for
Failure to Follow Instructions, Failure to Perform Duties of the Position
Conscientiously and Effectively, Conduct Unbecoming a Postal Employee
and Misuse of Postal Equipment.1
On February 17, 2005, the agency issued a notice of partial
acceptance/dismissal in which it dismissed claims 2, 3 and 5 pursuant
to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency
found that complainant failed to show that she suffered an adverse action
as a result of the incidents alleged or that she was denied a loss or
harm to a term, condition, or privilege of employment with regard to these
incidents. The agency accepted the remaining issues for processing.
At the conclusion of the investigation, complainant received a copy
of the investigative report. The agency informed complainant of
her right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the agency.
Complainant requested a hearing before an AJ.
While her complaint was pending before the AJ, complainant challenged
the agency's dismissal of issues 2, 3 and 5. On August 22, 2005, the AJ
found the agency properly dismissed issues 2, 3 and 5 for failure to state
a claim. 2 However, the AJ determined that, collectively, complainant's
allegations were sufficient to state a claim of discrimination of based
on harassment, hostile work environment.
Following a hearing, the AJ issued a decision on November 7, 2006, finding
that complainant had not been discriminated against as to claims 1, 4, 6
and 7. Specifically, the AJ found that the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut.
On November 15, 2006, the agency issued a notice of final action fully
implementing the AJ's decision. Thereafter, complainant filed the
instant appeal.
On appeal, complainant stated that the AJ did not consider substantial
allegations that she made which were relevant to the accepted EEO claims
and submitted to the EEO investigator. Complainant also asserted that
the AJ did not consider the evidence presented in her complaint with
respect to the seven and fourteen day suspensions and removal claims.
ANALYSIS AND FINDINGS
Claims 1, 4, 6, and 7
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.
In analyzing a disparate treatment claim under Title VII where the
agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we
apply the burden-shifting method of proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens
Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program,
198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34
(D.C. Cir. 1999). Under this analysis, in order to establish a prima
facie case, complainant must demonstrate that: (1) he is an "individual
with a disability"; (2) he is "qualified" for the position held or
desired; (3) he was subjected to an adverse employment action; and
(4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id
Upon review, we find that the record was fully developed and the AJ's
decision is supported by substantial evidence. We find the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Regarding claim 1, the Occupational Health Nurse Administrator (OHNA),
complainant's immediate supervisor, stated that she issued the Seven-Day
Suspension to complainant for the following reasons: 1) Conduct Unbecoming
a Postal Employee, 2) Failure to Follow Instructions, and 3) Failure
to Perform Duties of the Position Conscientiously and Effectively.
The OHNA asserted that complainant failed to timely address or reply
to the issues that the OHNA had brought to complainant's attention
regarding complainant's conduct and behavior in connection to a February
19, 2004 work assignment and failed to follow instructions in February
2004 regarding a "wellness" assignment and a "return to work" assignment.
As to claim 4, the OHNA argued that she issued the Fourteen-Day
Suspension to complainant for the following reasons: 1) Failure to
Follow Instructions and 2) Failure to Perform Duties of the Position
Conscientiously and Effectively. The OHNA said that complainant
was disciplined for failure to follow postal policies and procedures.
The OHNA claimed that complainant failed to process urine drug tests on
agency applicants according to agency procedures as she was trained and
certified to do. The OHNA stated that complainant's failure to follow
proper procedures for these drug tests placed the agency in a position
that could potentially have had legal ramifications. The OHNA argued that
complainant could have potentially adulterated any/all of the drug tests
she inappropriately processed, which could have led to false lab results.
The OHNA reported that this, in turn, could have affected an applicant's
ability to qualify for employment with the agency. The OHNA claimed
that complainant failed to process urine drug tests according to postal
procedures and guidelines as well as the manufacturer's procedures for
processing test cups.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or
prior EEO activity 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)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). 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); Enforcement Guidance at 6. The Supreme Court
has stated that: "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).
To establish a claim of hostile environment harassment, complainant must
show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on his statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
With respect to claim 6, the AJ noted that complainant's alleged
discriminatory harassment consisted of several incidents between February
2005 and April 2005. Specifically, complainant stated that: a) on
February 8, 2005, she was falsely accused by Acting OHNA (hereinafter
known as OHNA1) of personal use of the computer; b) in March and April
of 2005, she requested clarification from the area medical department
regarding treatment modalities, but did not receive a response impacting
her ability to perform her job duties; c) on March 30, 2005, she was
falsely accused of not performing her job when she allowed an employee
to talk with an acting administrator, OHNA1, about a fitness for duty
examination; d) on April 1, 2005, she received three electronic mail
messages from a clerk instructing her as to the performance of her duties;
e) on April 1, 2005, appointments were scheduled around her lunch time,
which made it difficult for her to go to lunch and resulted in her
being accused of poorly managing her time; f) on April 6, 2005, she
was informed by the OHNA1 that previously approved continuing education
classes were disapproved impacting her ability to renew her Registered
Nurse (RN) license in 2005; and g) on April 7, 2005, the OHNA and the
OHNA1 accused complainant of being incapable of performing her job when
the real problem was the fact that the health unit was understaffed and
had been for many years.
Corresponding to claim a, the OHNA1 stated that she did not accuse
complainant of using the computer for personal use. The OHNA1 explained
that personal information regarding complainant was found on the printer
by another employee and it was brought to her office. The OHNA1 stated
that several directives had been issued regarding the use of computers for
personal use. The OHNA1 sent an electronic mail message to complainant
asking for an explanation of the information found on the printer by
the close of business. The OHNA1 asserted that complainant responded
by electronic mail message, stating that the information was related to
diets for a healthy heart. The OHNA1 claimed that, once complainant's
response was received, no further administrative action was necessary
and no further disciplinary action was pursued. The OHNA1 stated that
she reminded complainant to follow the previous directives regarding
the use of computers. The record shows the OHNA1 did not request the
subsequent OIG investigation into complainant's of the computer for
personal reasons.
Incidental to claim b, the OHNA1 stated that she sand the OHNA both sent
complainant multiple responses with respect to complainant's request
for clarification of treatment modalities. The OHNA1 explained that,
on March 3, 2005, she spoke with complainant to clarify her concerns
regarding scheduled appointments versus employee walk-ins and that her
explanation did not seem to satisfy complainant.
In relation to claim c, the OHNA1 stated that she instructed complainant
that the employee in question should be sent directly to Concentra
Medical Center for a return to work evaluation by a physician to make
sure that the employee was mentally safe to return to work. The OHNA1
asserted that complainant allowed the employee to sit in the treatment
room for approximately 45 minutes to 1 hour while the employee's anxiety
and frustration increased until a Registered Nurse came in to work.
Regarding claim d, the OHNA1 stated that the clerk in question opted
to send electronic mail messages involving the "e-maps" to complainant,
rather than speak to complainant directly, because complainant treated
the clerk with disrespect on a regular basis. The OHNA1 said that the
clerk did not instruct complainant about the performance of her duties,
but merely informed complainant of the situations with "e-maps."
As to claim e, the timekeeping (TACS) records and the nurse's log from
April 1, 2005 reveal that, on April 1, 2005, complainant attended a
Cardiopulmonary Resuscitation (CPR) class in the morning, took her lunch
break, and saw her first patient after lunch.
With respect to claim f, the OHNA1 asserted that complainant failed to
follow procedures for requesting continuing education by not submitting
her request to her immediate supervisor. The OHNA1 said that she was
not aware of complainant's request until she received an electronic mail
message from the Senior Area Medical Director (SAMD). The OHNA1 stated
that the SAMD had approved complainant's training request, but that the
SAMD recommended complainant try to take courses involving occupational
medicine in the future and more in line with her job duties to enhance
her abilities on her job. The OHNA1 claimed that the SAMD stated that the
request form must be submitted to the District Human Resources Manger for
final approval and funding. The OHNA1 said that complainant's request was
never approved/disapproved, but rather delayed because she did not receive
a signed approval of complainant's request from the human resources
manager due to the lack of communication and complainant's failure to
follow procedures. The Manager of Human Resources (Manager) stated
that she reviews and recommends training request and that complainant
did not follow proper procedures for continuing education authorization
as outlined in the collective bargaining agreement.
Corresponding to claim g, the OHNA1 asserted that she did not accuse
complainant of being incapable of performing her job. The OHNA1 claimed
that the health unit was not understaffed on April 7, 2005, as alleged
by complainant. The OHNA1 stated that the TACS records revealed that
complainant had called in sick on April 7, 2005, and was not at work.
In reference to claim 7, the OHNA stated she issued the Letter of
Removal to complainant for the following reasons: 1) Failure to Follow
Instructions, 2) Failure to Perform Duties of the Position Conscientiously
and Effectively, 3) Conduct Unbecoming a Postal Employee, and 4) Misuse
of Postal Equipment. The OHNA asserted that complainant was visually
observed on the computer during many of the dates/times outlined in
the Officer of Inspector General (OIG) investigation report. The OHNA
asserted that complainant was not truthful to the OIG special agents
about the extent of her computer (internet) usage. The OHNA claimed that
she did not mandate or require complainant to give her computer code to
the contract nurses. The OHNA said that complainant did so voluntarily
because she did not want to perform all of the pre-employment medicals
herself. The OHNA argued that the policies relied on in her decision
to issue the Notice of Removal dated June 2, 2005, are noted in the
letter of removal. The OHNA said that complainant was given repeated
instructions to discontinue performing non-work related activities while
on the clock and when agency work should be the priority. The OHNA stated
that complainant repeatedly failed to follow any instructions given to
her and continued to use the computer (internet) for extensive periods
of time and/or when patients, employees or applicants were made to wait.
The OHNA articulated that complainant's usage affected her performance
and the health unit's operations on a daily basis between September 1,
2004 and December 21, 2004.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for its actions.
Additionally, the Commission finds that complainant has failed to show by
a preponderance of the evidence that she was subjected to discrimination
on the bases of race or reprisal. Moreover, complainant has failed to
show that the alleged harassing incidents, when considered together,
constitute a discriminatorily hostile work environment. Furthermore,
the Commission finds that the AJ's decision is supported by substantial
evidence in the record.
Claims 2, 3 & 5
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEC Request No. 05931049 (April 21, 1994).
As to issues 2, 3 and 5 raised in complainant's second complaint, we note
complainant alleged that the incidents at issue were part of a pattern
of harassment. We find the agency improperly dismissed these issues
on the grounds that complainant failed to show that she was subjected
to an adverse action. We find the incidents should have been examined
as an overall claim of harassment and as background to incident 4, the
fourteen-day suspension, which we note was a discrete act. Nevertheless,
as the remaining claims have been decided on the merits, we find that
incidents 2, 3 and 5 are not sufficiently severe or pervasive so as to
have unreasonably interfered with complainant's ability to perform her
job and/or created an objectively hostile work environment. Accordingly,
the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
December 22, 2009
__________________
Date
1 We have reordered and renumbered the allegations.
2 According to the hearing transcript, complainant withdrew the bases
of color, religion and age.
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0120071070
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120071070