Brenda J. Diggs, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.

Equal Employment Opportunity CommissionDec 22, 2009
0120071070 (E.E.O.C. Dec. 22, 2009)

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