0120142054
10-28-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120142054
Hearing No. 430-2012-00262X
Agency No. 4K-230-0010-12
DECISION
Complainant filed an appeal from the Agency's April 25, 2014, final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
ISSUE PRESENTED
The issue presented is whether the Administrative Judge's post-hearing decision, which was adopted by the Agency, is supported by a preponderance of the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Temporary Relief Carrier at the Agency's Ivor Post Office facility in Ivor, Virginia.
On October 31, 2011, Complainant contacted an EEO Counselor. On January 3, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and religion (unspecified) when, beginning on or about July 7, 2007, and continuing, Complainant had to work in a hostile work environment by having to deliver mail to a nudist resort.
The pertinent record reveals the following facts. Complainant served as a substitute carrier, delivering on routes assigned to regular carriers on the days when the regular carriers were off. On Saturdays, Complainant delivered Route 2, which included deliveries to the White Tail Resort, a gated nudist community. The mail boxes for the residents of the White Tail Resort are located outside the privacy fences. Beginning in 2007, management instructed the carriers that they should not enter the Resort. Complainant admits that she was not required to enter the Resort after 2007. Complainant alleged that she saw naked people after 2007, when the entrance gates opened, or when the naked residents came to the mailboxes outside the fence, while Complainant was delivering mail.
The record included the Complainant's testimony and that of the regular carrier, who also filed a complaint on this matter. During the hearing, Complainant was asked to identify each incident of the alleged harassment. Complainant identified incidents that occurred in 2007. Specifically, Complainant stated that there was another incident in early October, but she did not know the exact date. On October 25, 2011, the Postmaster wrote to the Manager of the Resort to request that the Manager advise the Resort residents not to go out to the mailboxes in the nude. Eventually, the mailboxes were moved to a different location.
The Agency accepted the complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ denied the Agency's motion for summary judgment and held a hearing on March 27, 2014. She issued a decision on April 18, 2014.
The AJ Decision
The AJ found that "Complainant has not proven she was discriminated against based on her sex or religion." She found that the "preponderance of credible evidence shows that Complainant did not experience a timely incident of discrimination." The AJ reasoned that the credible evidence showed that the incidents occurred in 2007 and in June to July of 2011. The AJ heard testimony from Complainant about an alleged October 1, 2011 incident, but the AJ found "her [Complainant's] statements about the incident, and in particular about the date of its occurrence, are not credible." The AJ explained that Complainant failed to mention this incident, or any other timely incidents, to the EEO Counselor in any of her written statements, her Investigative Affidavit, or in her statement in support of a coworker's complaint. The AJ also found Complainant's statements to be inconsistent with her prior statements. The AJ found that the evidence did not establish that Complainant saw a naked individual on or after September 16, 2011. The AJ also stated that her decision was "also based on [the AJ's] observations of Complainant's body language, tone of voice, and overall demeanor during her testimony at the Hearing." The AJ concluded that Complainant's "demeanor was inconsistent with truthful testimony."
Further, the AJ found that Complainant presented no evidence that she notified the Agency of any religious belief, or that the Agency was otherwise aware she held a religious belief that prohibited her from seeing naked people. The AJ stated that she considered all of the arguments and found "based on the evidence they are without merit." The AJ entered judgment in favor of the Agency.
The Agency subsequently issued a final order adopting the AJ's finding.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that this is an appeal from a judgment on the merits, although the entry of judgment was predicated, in part, on a factual determination with regard to timeliness. 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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
On appeal, Complainant argues that the Judge's reliance on the EEO Counselor's statement and Complainant's answers to the EEO investigator's questions was "misplaced." The Agency maintains that the AJ made a proper credibility finding, based on the fact that Complainant's testimony at hearing was inconsistent with her four prior written statements that Complainant wrote much closer to the time of this alleged occurrence.
Here, Complainant claims that requiring the delivery to the Resort created a hostile work environment.
Section 717 of Title VII states that "all personnel actions affecting employees or applicants for employment in executive agencies shall be made free from any discrimination." A complainant may assert a Title VII cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin. Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied EEOC Request No. 05970995 (May 20, 1999).
In this case, the requirement to deliver the mail to the Resort was gender - neutral. It impacted men and women. There is also no evidence to show that the Agency required different standards based on an employee's religion or that the Agency was aware of Complainant's religion. Therefore Complainant failed to establish that she was treated differently because of her sex or religion.
Further, and consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995).
In this case, we find that the AJ's decision is supported by the record. We assume for purposes of analysis that the nudists were still coming out to the mailboxes in October of 2011. We find, however, that the AJ had an evidentiary basis for concluding that Complainant did not prove that she experienced such an incident in October of 2011. Complainant has not demonstrated that the decision is factually erroneous or wrong as a matter of law.
CONCLUSION
Accordingly, for the reasons stated herein, we AFFIRM the Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 (S0610)
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 (Z0610)
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
October 28, 2014
__________________
Date
2
0120142054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142054