Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 1, 2014

0120141183 (E.E.O.C. Aug. 1, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120141183

Hearing No. 550-2013-00081X

Agency No. 1F-946-0048-12

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s January 9, 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Mail
Processing Clerk at the Agency’s Processing and Distribution Center in Oakland, California.
Complainant was on limited duty with restrictions, including a 10-minute break every hour.
On April 9, 2012, Complainant returned from a 10-minute break when Acting Supervisor (S1)
approached her and said “[Complainant], every time I come to your machine, you’re not
here.” Complainant responded that he must not have been aware that she takes a 10-minute
break and that he probably came by when she was on her break. S1 believed that Complainant
had been away from her machine more often than just for her breaks. The two began arguing,
and Complainant claimed that S1 yelled at her, jumped in front of her, bumped her in the
chest, and said “I’m your supervisor! Don’t walk away from me when I’m talking to you.”
Complainant laughed at S1 and said “OK, 204b, what else would you like me to do?” S1 then
told Complainant to “take her ass home.” S1 denied that he yelled and cursed at Complainant
or that he bumped her. Complainant then talked to her manager (M1) who told her to stay and
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continue working. Complainant worked the remainder of her shift. Complainant was not
supervised by S1 again.

On June 25, 2012, Complainant claimed that her supervisor (S2) told her to work faster and
accused her of sabotaging the mail. S2 believed that Complainant was purposely delaying the
mail after Complainant stared and laughed at a jam in her machine instead of removing the
jammed piece of mail. In addition, Complainant alleged that she hurt her thumb while
sweeping mail. Complainant claimed that she informed S2 who told her that she would
eventually get her the paperwork to document her injury. Complainant believed that S2
ignored her injury and need for medical attention, and delayed providing the requested
paperwork as she did not receive it until near the end of her shift. Further, Complainant
claimed that S2 did not provide her a CA-1 (Notice of Injury and Claim for Continuation of
Pay Compensation) Form; however, she at some point received the form and submitted her
claim. Complainant returned to work the next day under a different supervisor and alleged that
she suffered another injury and was sent to the emergency room. Complainant was not
supervised by S2 after the June 25, 2012 incident.

On August 23, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American), sex (female), and disability when:

1. On April 9, 2012, she was physically and verbally abused when S1 jumped in front of
her, blocked her way, yelled, screamed, cursed, bumped her in the chest, and told her
to take [her] ass home; and

2. On June 25, 2012, she was told to work faster, was refused medical attention after
injuring her hand, was yelled at and denied a CA-l workers’ compensation form, was
accused of sabotaging the mail, and was taunted and told that the Postal Inspectors were
going to get her.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the
case granted the Agency’s motion for summary judgment and issued a decision on December
13, 2013.

In her decision, the AJ concluded that the alleged events were isolated incidents which, even
when considered together, were not sufficiently severe or pervasive to establish a hostile work
environment. Furthermore, the AJ determined that there was no evidence that the alleged
incidents were based on Complainant’s protected classes. As a result, the AJ found that
Complainant had not established that she was subjected to a hostile work environment as
alleged. The Agency subsequently issued a final order adopting the AJ’s decision. The instant
appeal followed.

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CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency as there are material facts in dispute. In addition, Complainant contends that the
AJ erred by not permitting the amendment of the complaint to include allegations dating back
to 2007, as these additional allegations could demonstrate a continuing pattern of harassment.
Further, Complainant alleges that the Agency has accused her of filing fraudulent workers’
compensation claims which was a continuation of the hostile work environment. Accordingly,
Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and evidentiary standards that apply
to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is
not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id.
at 249. The evidence of the non-moving party must be believed at the summary judgment stage
and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An
issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in
favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v.
Digital Equip. Corp.

, 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the
potential to affect the outcome of the case.
Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing. Thus, the AJ's issuance of
summary judgment was appropriate. The Commission finds that, even assuming all facts in her
favor, a reasonable fact finder could not find in Complainant's favor. Furthermore, as to
Complainant’s argument that the AJ erred in denying her motion to amend her complaint, the
Commission notes that AJs have discretion in determining whether an amendment is
appropriate. See

29 C.F.R. § 1614.109(c). In denying the motion, the AJ concluded that
Complainant failed to link the alleged “ongoing harassment” with the incidents presently at
issue. The Commission concludes that the AJ did not abuse her discretion in denying the
motion to amend, and Complainant has failed to establish reversible error in this instance.
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. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
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Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 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).

Here, Complainant asserted that based on her protected classes, she was subjected to a hostile
work environment. Complainant has cited two incidents. Construing the evidence in the light
most favorable to Complainant and assuming that the conduct alleged was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the alleged
incidents were based on her protected classes. As a result, the Commission finds no basis to
disturb the AJ's summary judgment decision finding that Complainant was not subjected to a
hostile work environment as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Administrative Judge's grant of summary judgment in
favor of the Agency was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred.

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 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), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
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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 Date
August 1, 2014
Office of Federal Operations