01970254
02-23-2000
Carey L. Anderson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carey L. Anderson v. United States Postal Service
01970254
February 23, 2000
Carey L. Anderson, )
Complainant, )
) Appeal No. 01970254
v. ) Agency No. 4F-926-1065-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Caucasian), sex (female), reprisal (prior EEO activity),
and mental disability (emotional stress), 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.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether the agency discriminated against
complainant based on her race, sex, disability, and prior EEO activity.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a carrier, at the agency. Complainant alleges that she was
discriminated against when: (1) she was mandated to meet with a postal
service attorney on December 24, 1995; (2) she was issued a notice of
removal dated December 8, 1995; and (3) she was allegedly harassed
when she received a solicitation of interest on December 20, 1995.
Believing she was a victim of discrimination, complainant sought EEO
counseling on December 11, 1995, and, subsequently, filed a complaint on
February 12, 1996. At the conclusion of the investigation, complainant
failed to request a hearing or a decision without a hearing. Therefore,
the agency issued a final decision without a hearing.
The FAD concluded that complainant failed to establish a prima facie
case of racial, sex, disability, and reprisal discrimination because
she presented no evidence that similarly situated individuals not in her
protected classes were treated differently under similar circumstances.
Additionally, the FAD found that the agency was able to state legitimate
and nondiscriminatory reasons for its actions. Complainant was unable to
show that the agency's explanation was mere pretext for discrimination,
so the FAD concluded that complainant failed to meet her burden of
proving by preponderant evidence that she was the victim of intentional
discrimination.
On appeal, complainant contends that the agency failed to consider a
number of her arguments. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Disability Discrimination
Although the agency did not address complainant's prima facie case of
disability discrimination, the Commission finds it appropriate to address
this issue herein.
Complainant must first establish a prima facie case of disparate
treatment disability discrimination by showing that: (1) she is an
individual with a disability, as defined by 29 C.F.R. � 1630.2(g);<2>
(2) she is a qualified individual with a disability pursuant to 29
C.F.R. � 1630.2(m); and (3) she was subjected to an adverse personnel
action under circumstances giving rise to an inference of disability
discrimination. See Prewitt v. United States Postal Service, 662 F.2d
292 (5th Cir. 1981).
We turn now to an examination of complainant's disability claim.
Initially, we must reach a threshold determination as to whether
complainant falls within the protection of the Rehabilitation Act of
1973. One bringing a claim of disability discrimination must first
establish that she is a member of the class of persons protected by the
Rehabilitation Act, i.e., a qualified individual with a disability.
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such an impairment, or (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined
"substantially limits" as "[u]nable to perform a major life activity
that the average person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities
include such functions as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. EEOC
Regulation 29 C.F.R. � 1630.2(i).
Upon review of the record, we find that complainant failed to demonstrate
that she has an impairment, emotional stress, that substantially
limits one or more major life activities. Further, there is no record
of complainant having such an impairment. Also, the agency never
considered complainant disabled. Therefore, we find that complainant
fails to establish a prima facie case of disability discrimination.
Accordingly, the Commission finds that the agency correctly determined
that complainant failed to show by preponderant evidence that she was
a victim of disability discrimination.
Racial, Sex and Reprisal Discrimination
Complainant alleged that she suffered from discriminatory harassment
and disparate treatment based on her sex, race, and prior EEO activity.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Cen. v. Hicks, 509 U.S. 502 (1993).
Discriminatory Harassment
In order to establish a claim of discriminatory harassment, Commission
precedent holds that a complainant must show that she was "subjected to
harassment . . . sufficiently pervasive so as to alter the conditions
of employment and create an abusive working environment." Sampson
v. Department of the Air Force, EEOC Request No. 05891005 (March 16,
1990) (citation omitted). This showing must include discrete comments
directed against complainant or disparate treatment of her that supports
an inference of discriminatory harassment. Whether the degree of
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, 114 S.Ct. 367 (1993).
In this case, complainant alleged that she faced incidents which
created a hostile working environment, in particular claims (2) and (3).
Upon review of the record, the Commission concludes that the conduct
alleged by complainant is not sufficient and does not rise to the level
of conduct that creates a hostile work environment.
Disparate Treatment
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transp., EEOC Request No. 05900159 (June 28,
1990); Peterson v. Department of Health and Human Serv., EEOC Request
No. 05900467 (June 8, 1990); Washington v. Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated a legitimate, nondiscriminatory reason for
its action. Namely, the agency removed complainant for unacceptable
conduct.<3> The Commission finds that the record supports the agency's
argument. Therefore, we find that the agency has met its burden by
articulating a legitimate, nondiscriminatory reason for its action.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was pretext for discrimination.
Upon a review of the record, we find that complainant has failed to show
pretext by preponderant evidence. Therefore, the agency's determination
that complainant failed to establish that she was discriminated against
was correct.
CONCLUSION
Therefore, after a careful review of the record, we affirm the FAD.
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:
Feb. 23, 2000
DATE Frances M. Hart
Executive Officer
Executive Secretariat
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
1 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.
2 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
3 The agency alleges that complainant was asked about working
on nonpostal work while at the office. Complainant responded in
the negative. Later, the agency found evidence to the contrary and
determined that complainant used postal equipment to conduct activities
for the Postal Managers of America.