Cheryl Habel, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 13, 2009
0120090010 (E.E.O.C. Mar. 13, 2009)

0120090010

03-13-2009

Cheryl Habel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Cheryl Habel,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090010

Agency No. 4K-280-0039-08

DECISION

On September 25, 2008, complainant filed an appeal from the agency's

August 28, 2008 final action concerning her equal employment opportunity

(EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the

agency's final action.

At the time of events giving rise to this complaint, complainant worked

as a Rural Carrier Associate/Srv. Reg Rte., Rural-05, at the agency's

work facility in Jacksonville, North Carolina.

On March 19, 2008, complainant filed an EEO complaint claiming that

she was discriminated against on the bases of her sex (female) and in

reprisal for prior protected EEO activity under Title VII1 when:

1. On December 11, 2007, complainant was assaulted by a coworker.

2. On December 20, 2007, management did not appropriately investigate

the incident.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final action pursuant to 29 C.F.R. �

1614.110(b). The agency determined that complainant failed to prove

that she was subjected to discrimination as alleged.

Complainant stated that on December 11, 2007, she attempted to reenter

the facility but was told by a coworker that she could not enter through a

particular door, therefore she entered the building through another door.

According to complainant, she subsequently attempted to exit the building

through the same door by then backing through the door with a loaded

dolly when the coworker said "you can't come through here!" and shoved

her forward, causing the packages to fall off the dolly she was pulling.

Complainant claimed that the coworker intentionally acted in a malicious

and aggressive manner. Complainant stated that she reported the incident

to her Supervisor. The Supervisor then spoke to the coworker about

the matter. Complainant stated that she also reported the incident to

the agency's Inspection Service and that she provided the Inspector with

a statement. According to complainant, she spoke with the Postmaster

about the incident. Complainant maintained that during this meeting,

she was calm and respectful, but the Postmaster used numerous profanities,

was aggressive, confrontational, intimidating and dismissive.

The agency determined that complainant failed to establish a prima facie

case of sex discrimination with regard to being assaulted by a coworker.

The agency noted that the coworker described the incident as one where

he placed his hand up to block the door complainant was opening, and his

hand slid off and touched her shoulder. The agency further noted that

there were no witnesses who witnessed the entire sequence of events who

could definitively testify as to one version of events over another.

The agency determined that there is no evidence that management played

any role in the events surrounding the alleged assault. According to

the agency, complainant's employment status was not affected by the

coworker's conduct.

With regard to claim (2), the agency determined that the Supervisor

began a fact-finding interview with the coworker immediately after being

informed of the incident. The Supervisor subsequently reported the

incident to the Postmaster and informed both parties not to have contact

with the other and to report any unsolicited contact to a supervisor

immediately. The agency noted that its Inspection Service conducted an

investigation that included interviews with complainant and the coworker.

The agency determined that complainant failed to prove that the incident

was not investigated appropriately.

On appeal, complainant contends that she was physically assaulted by

the coworker and that during the relevant incident she was utilizing an

appropriate exit for loading vehicles. Complainant maintains that she

was discriminated against because she is a female with only one year of

seniority. According to complainant, she was bullied by management and

it tried to cover up the incident. Complainant states that the coworker

put his hands on her and shoved her through the double doors rather than

his hands merely slipping off of the door and landing on her back.

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Initially, we note that we shall address complainant's claim of reprisal

on the merits in light of the fact that she initiated contact with an EEO

Counselor on December 17, 2007, prior to the incident set forth in claim

(2). The record is sufficiently developed to issue a decision on the

merits of the retaliation claim.2 Assuming arguendo, that complainant

established a prima facie case of sex and reprisal discrimination, we

shall now examine the agency's explanation for the alleged events. With

regard to claim (1), the agency stated that the coworker's description of

the incident varied significantly from that of complainant. The coworker

stated that he placed his hand up to block the door complainant was

opening and his hand slid off and touched complainant's shoulder. As for

claim (2), the agency stated that it conducted a prompt investigation

of the matter, referencing actions taken by the Supervisor and the

Inspection Service. The Supervisor initiated an investigation on the

day of the alleged assault. The Inspection Service conducted interviews

as part of its investigation. We find that the agency articulated a

legitimate, nondiscriminatory explanation with regard to each claim.

In an effort to establish pretext, complainant argues that her version

of the alleged assault is accurate and the agency is attempting to

cover up what actually occurred. Complainant claims with respect to the

investigation that she was ridiculed and intimidated by the Postmaster.

Complainant contends that the coworker was never reprimanded for his

conduct. Upon review, we observe that the evidence is not sufficiently

persuasive to support complainant's position that she was assaulted by

the coworker due to her sex. We note that the Postmaster stated that

complainant was aware that she was not to use the line of travel in the

staging area while someone is working, and that she could have waited

until the coworker was finished before entering the area. Further,

the record reveals that the Inspector during a replication of the

incident stated that when he attempted to block the door as the coworker

described, his hand slid and contacted complainant's shoulder as the

coworker described. Based on a lack of evidence to support complainant's

assertion, we find that complainant has not established that she was

discriminated against on either basis with regard to the alleged assault.

With regard to the investigation, we find that the actions taken by

the Supervisor and the Inspection Service reflect that the agency took

prompt and appropriate measures in investigating the alleged incident.

There is no indication that any action taken by the agency as part of

the investigation was based on reprisal or complainant's sex.

The agency's final action finding no discrimination is hereby 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

March 13, 2009

__________________

Date

1 This basis was not accepted for investigation as complainant had not

participated in EEO activity prior to the instant complaint.

2 It is not clear if complainant is still pursuing the claim of

retaliation.

??

??

??

??

2

0120090010

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120090010