0120073377
01-19-2010
Cora M. Haywood, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeastern Area), Agency.
Cora M. Haywood,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeastern Area),
Agency.
Appeal No. 0120073377
Hearing No. 490-2006-00041X
Agency No. 1H-381-0048-05
DECISION
On July 23, 2007, complainant filed an appeal from the agency's June
19, 2007 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., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
ISSUE PRESENTED
Whether substantial evidence supports the EEOC Administrative Judge's
(AJ) determination that complainant was not subjected to discrimination
in reprisal for prior EEO activity and on the bases of disability, age,
sex, race, and religion.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a clerk at the agency's Memphis, Tennessee Processing and Distribution
Center.
On August 24, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American),
sex (female), religion (Pentecostal), disability, age (born in 1953),
and in reprisal for prior protected EEO activity under when:
1. On June 10, 2005, her supervisor accused her of falsifying doctor
statements;
2. On June 10, 2005, her supervisor made fun of her God when he stated
that God did not answer her prayer because her Office of Worker's
Compensation Programs (OWCP) claim was denied and that complainant should
pray again;
3. On June 10, 2005, her supervisor placed her off the clock until she
submitted an up-to-date light duty request;
4. On an unidentified date, her supervisor falsely accused her of walking
around for thirty minutes prior to getting off work;
5. On June 25, 2005, the acting supervisor orally reprimanded her;
6. On June 25, 2005, she was accused of being absent without leave (AWOL)
but was not charged AWOL;
7. Starting June 27, 2005 and ongoing, the agency denied her overtime;
and,
8. On an unidentified date, the agency subjected her to an investigative
interview.
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 AJ. Complainant timely requested a hearing, and
the AJ held a hearing on May 8 and 9, 2007.
Ten witnesses testified at the hearing. Complainant testified that she
previously filed EEO complaints in 1997 and 1999. She further testified
that she suffered an injury on the job in June 2002 and did not return to
work until April 19, 2004. Complainant stated that when she returned to
work with restrictions from her physician, the Manager of Distribution
Operations (Manager) talked to her in a loud voice and accused her of
falsifying her doctor's restrictions. Complainant further testified
that she then told the Manager that although her OWCP claim had not been
accepted, and "God will see to it being approved," the Manager laughed
and stated, "Well, you need to go pray again. Obviously God didn't answer
your prayers. He let your claim be denied. God is over us all." Hearing
Transcript (HT), p. 13.
Complainant further testified that the Manager also stated that
complainant could not return to work after she clocked out for the day
until she brought a statement from her physician approving her for light
duty. Complainant stated that she was out of work for approximately two
weeks until she returned the light duty forms, and when she returned to
work, she was given six hours of light duty per day.
The Tour 1 Manager of Distribution Operations testified that on June 10,
2005, he asked complainant to work on machines, but complainant claimed
she had restrictions that precluded her from doing so. The Manager
stated that he informed her that he needed to see her CA-17 form so that
he could determine her medical restrictions. He stated that complainant
could not produce a CA-17 form, and he researched the matter and found
that OWCP had denied her claim on August 8, 2002, and complainant
should be on light duty because she was ineligible for limited duty.
The Manager stated that he approached complainant about the matter
because complainant worked on his tour, and his supervisor inquired
about complainant's limitations because the agency needed her to work
on machines. The Manager stated that when he informed complainant that
he needed documentation to substantiate her restrictions, complainant
brought religion into the conversation by stating that "God was going to
make sure that everybody got what they deserved." HT, p. 304. "And I
explained to her, I said, well, if that's the case, then God will make
sure that OWCP accepts this claim if you're being truthful about the
situation," the Manager testified. Id. The Manager stated that he told
complainant to bring him documentation regarding her restrictions so
that he could ascertain if she should be on limited or light duty.
Regarding claim 3, the Manager testified that he explained to complainant
that in order to receive a light duty assignment, employees must first
request light duty. He further stated that he told complainant that she
must submit documentation demonstrating her medical restrictions to the
agency so that she could receive an assignment within her restrictions.
"It [restrictions] can be from zero hours of the day up to eight hours a
day, and this is to not only protect the employee from working outside
their limitation and reinjuring themselves or injuring themselves,
it's also to protect the liability issue regarding the Postal Service,"
the Manager stated. HT, p. 322.
Regarding claim 4, the Manager testified that complainant was questioned
about her whereabouts because on June 19, 2005, he noticed that she
left her work assignment with decorations in a cart. He stated that he
later observed complainant return to the facility. The Manager stated
that he pulled the gate rings from the turnstile, which reflected that
complainant had exited the facility on the north exit, went out the
turnstile in the parking lot, reentered the facility through the north
turnstile, and returned to her machine. He stated that when he asked
complainant if she had permission to take down decorations and go to her
car, complainant responded that she did not have supervisory permission
to do so. The Manager further stated that he believed that the agency
lost 45 minutes of productivity from complainant wherein she took down
decorations, put the decorations in a cart, pushed them out the door,
went to her car, and returned to the facility.
The Manager maintained that complainant violated agency policy because
employees can only be in the parking lot or outside the facility when
they are on lunch or leaving or coming to work. "First of all, she
left her work assignment without permission. Second of all, she went
outside the Post Office premises when she was on the clock, which is
a violation of our general rules and regulations," the Manager stated.
HT, pp. 310, 311. The Manager stated that he explained to complainant
that taking down decorations was not her job and that she was "missing"
from her assigned job. HT, p. 33. He testified that he did not recall
accusing complainant of being AWOL on June 25, 2005.
Complainant also testified that after she went on light duty, the
agency failed to grant her overtime, except occasionally on holidays.
Complainant stated that overtime work was available within her
restrictions, but her supervisor culled mail "all night long" instead of
allowing her the opportunity to perform this duty while on overtime. HT,
p. 96. The Plant Manager testified that although he was not responsible
for denying or granting complainant overtime, employees were not precluded
from working overtime as long as there was work available for them to
do within their restrictions.
Complainant's supervisor testified that she gave complainant an
investigative interview because she had three or four unscheduled absences
in a short period of time and worked through her lunch after being told
not to do so. The supervisor stated that she has called many employees
into her office for investigative interviews in order to resolve matters.
The supervisor testified that she did not recall ever requesting that
complainant be charged AWOL.
The AJ's Decision
On May 9, 2007, the AJ issued a decision in which he found that
complainant was not subjected to unlawful discrimination. Additionally,
the AJ determined that complainant was not a credible witness because
she mischaracterized witness testimony during the hearing and claimed
that a document prepared on June 29, 2005 was an affidavit, although
she later admitted that the document was "doctored up" during the week
of the hearing. The AJ further noted that all three of complainant's
supervisors were African-American females, which undermined her race
and sex discrimination claims. Finally, the AJ noted that on June 10,
2005, complainant raised the subject of God with her supervisor, and
the supervisor's response was merely an "off the cuff response to her
inappropriate comments." The agency subsequently issued a final order
fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred in finding no
discrimination. Complainant argues that the AJ improperly viewed her as
interjecting God into a conversation with her supervisor regarding her
OWCP claim. Complainant further argues that the AJ wrongly stated during
the hearing that Shelby County, Tennessee does not usually have snow in
February, although weather records reflect that it snowed in Tennessee on
February 10 and 11, 2006, dates for which complainant received a letter of
warning for unscheduled absences. Complainant also argues that it only
took ten minutes to take decorations from the office to her car, and the
rule that employees must obtain permission before going to their cars was
not enforced for other employees. Additionally, complainant maintains
that she never intended to deceive the AJ regarding the letter dated June
29, 2005, and the AJ should have understood that the letter was prepared
on June 29, 2005, but the affidavit accompanying it was prepared during
the hearing. The agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
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, � VI.B. (November 9, 1999).
Harasssment and Disparate Treatment
In order to prevail in a disparate treatment claim, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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 burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. 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).
To establish a claim of hostile environment harassment, complainant must
show that: (1) she belongs to a statutorily protected class; (2) she
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 her 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 to the agency. 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 on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994). Further,
the incidents must have been "sufficiently severe and pervasive to alter
the conditions of complainant's employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
For purposes of analysis, we assume that complainant is a qualified
individual with a disability and established a prima facie case of
reprisal and disability discrimination. Nonetheless, we find that the
agency provided non-discriminatory explanations for its alleged actions
(as detailed above) that were not proven to be pretextual by complainant.
Complainant contends that it only took ten minutes to take decorations
from the office to her car, and the rule that employees must obtain
permission before going to their cars was not enforced for other
employees. However, we note that, while acknowledging that she did not
obtain supervisory permission before taking decorations to her car on
the date at issue, complainant did not show that the Manager failed to
discipline other employees he observed leaving the facility while on
the clock without supervisory permission.
Complainant also argues that the AJ wrongly stated during the hearing
that Shelby County, Tennessee did not usually have snow in February,
although weather records reflect that it snowed in Tennessee on
February 10 and 11, 2006, dates on which complainant received a letter
of warning for unscheduled absences. Although complainant contends
that 40 percent of the facility's employees also missed work on two
dates in February 2006 because of snow, the supervisor testified that
she still considered the snow day absences to be unscheduled absences
that warranted a letter of warning. Thus, we do not find that the debate
over Tennessee's climatology to be relevant to the outcome of this case,
since the supervisor stated that snow did not justify complainant's
unscheduled absences from work. Moreover, complainant did not show
that the supervisor failed to discipline other subordinate employees
that amassed unscheduled absences during the same time period.1
Complainant further maintains that she never intended to deceive the AJ
regarding a statement she made on June 29, 2005, and the AJ should have
understood that the statement was prepared on June 29, 2005, but the
affidavit accompanying it was prepared during the hearing. The hearing
transcript reveals that complainant attempted to transform her unsworn
June 29, 2005 statement at the hearing into an affidavit statement by
attaching a sworn oath to it during the hearing. After discussing the
derivation of the documents with complainant at the hearing, the AJ
determined that complainant's statement was not an affidavit statement
because her oath was not made contemporaneously with her statement.
The AJ determined that complainant was not a credible witness because she
mischaracterized witness testimony and tried to misrepresent her June 29,
2005 statement as an affidavit statement. Upon revew, we find no basis
to reject the AJ's credibility determinations.
Finally, complainant argues that the AJ improperly determined that "if
anything inappropriate was said concerning 'God,' it was the complainant
raising the issue in the first place." AJ's Decision, p. 15. While we
do not find that merely mentioning God was inappropriate in this case,
we also do not find that the supervisor's curt response to complainant
constituted a hostile work environment. In so finding, we note that
EEO regulations are not a general civility code. Rather, they forbid
"only behavior so objectively offensive as to alter the conditions of
the victim's employment." Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 81 (1998). Even when viewing the alleged events as a whole,
we find that the incidents are not sufficiently severe or pervasive to
constitute harassment. Thus, we find that substantial evidence in the
record supports the AJ's determination that complainant failed to prove
that was she was subjected to unlawful discrimination or harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we affirm the agency's final order.
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
____1/19/10______________
Date
1 Furthermore, we note that complainant's assertion that it snowed on
February 10 and 11, 2006, does not directly refute the AJ's statement
that it usually does not snow in February in Shelby County, Tennessee.
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0120073377
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073377