0120080662
09-10-2009
Darrilyn A. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Darrilyn A. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120080662
Agency No. 4C-450-0085-06
Hearing No. 470-2007-00122X
DECISION
On November 23, 2007, complainant filed an appeal from the agency's
October 16, 2007 final decision 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 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 decision.
ISSUE PRESENTED
Whether complainant met her burden of proving that she was subjected to
unlawful retaliation.1
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisor, Customer Services at the Mt. Healthy Branch of the
Cincinnati, Ohio Post Office. On November 11, 2006, complainant filed
an EEO complaint alleging that she was discriminated against on the
bases of race (African-American), color (black), sex (female), and
reprisal for prior protected EEO activity [arising under Title VII]
when, beginning on or about May 31, 2006, and continuing, complainant
has been subjected to a hostile working environment in regards to,
but not limited to working conditions, leave, and schedule.
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). Although complainant
initially requested a hearing, on September 11, 2007, pursuant to
complainant's withdrawal of hearing request dated August 24, 2007, the
AJ remanded her complaint to the Postal Service for the issuance of a
final decision (FAD).
Final Agency Decision
The FAD initially noted that complainant failed to submit a response to
the EEO Investigator's request for an Affidavit. The FAD then found as
follows: as to the March 31, 2006 incident (under a disparate treatment
framework) complainant failed to initiate EEO counseling within 45 days.
Additionally, complainant failed to establish that she was subjected to
an adverse employment action. Specifically, her manager denied being
aware that complainant had left work on May 31, 2006, and so did not
request either a PS Form 3971, or medical documentation from complainant
for her absence on that date. Had her manager done so, however both
actions would have been consistent with Postal regulations as stated in
Sections 511.23 and 513.33 of the Employee and Labor Relations Manual
(EIM). Next, the manager's requirement that in order for complainant
to return to work, her medical documentation must state that she was
not a danger to herself or others was a requirement clearly spelled out
in Sections 865.3 and 865.4 of the ELM. Next, the manager's actions
regarding the counting of the stamp stock in complainant's absence was
to comply with an annual audit requirement, and the attempt to obtain
complainant's keys from her home and her safe combination was to avoid
drilling through cabinet locks and the combination lock of the safe,
because complainant did not report for work as expected. There was no
evidence to indicate that, as she alleged, complainant's request for FMLA
had been denied, that her lunch was delayed, or that the audit revealed a
shortage for which complainant was responsible. In fact, the FAD found
that nothing complained of constituted an adverse employment action,
as none affected a term or condition of employment.
The FAD further found that complainant failed to identify any
similarly-situated individual, not in her protected groups, who was
treated more favorably under similar circumstances. The FAD found that
complainant did not establish a prima facie case of discrimination, and
did not prove that the agency's reasons for its actions were pretexts for
discrimination or retaliation. Under a harassment framework, the FAD
found that complainant did not show that the management's conduct was
severe or pervasive (noting that complainant was not at work from May
31, 2006 through July 30, 2006, as she was out on FMLA leave), or that
the conduct was based on complainant's membership in a protected group.
The decision concluded that complainant failed to prove that she was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant notes that reprisal is the only basis of alleged
discrimination that she wishes to pursue. She then notes that her
entire complaint is timely, within a continuing violation framework,
because the last incident of harassment occurred within 45 days of when
she sought EEO counseling. She asserts that she has established a prima
facie case of reprisal, noting that she engaged in EEO activity on May
30, 2006 and June 27, 2006, and the first adverse employment action took
place on May 31, 2006 and continued until August 2007. She states that
accordingly, the short proximity in time is sufficient to establish the
nexus between her EEO activity and the challenged actions. In reply,
the agency asks the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").2
We agree that complainant's claim is timely within a harassment framework.
Based on the standards set forth in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993), in order to prevail on a claim of harassment, complainant
must prove that: (1) she was subjected to harassment that was sufficiently
severe or pervasive to alter the terms or conditions of employment
and create an abusive or hostile environment; and (2) the harassment
was based on her membership in a protected class. See EEOC Notice
No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 6; Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997). The evidence in the record is insufficient
to support a finding that management's actions towards complainant were
based on her prior EEO activity. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
We note that in so finding, we do not have the benefit of an AJ's findings
after a hearing, and therefore, we can only evaluate the facts based
on the weight of the evidence presented to us. The agency articulated
legitimate, non-discriminatory reasons for its actions. Complainant was
simply unable to establish, by a preponderance of the evidence, that a
desire to retaliate against her was the true reason.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
______9/10/09____________
Date
1 As will be discussed further below, complainant initially alleged four
bases of discrimination, but, on appeal, she states that she only wishes
to pursue the basis of reprisal/retaliation.
2 As complainant did not allege a violation of the Rehabilitation Act,
and given that she specifically indicates on appeal that reprisal is
the only basis that she wishes to pursue, we will not reach the question
whether the agency's request for medical documentation (i.e. the manager's
requirement that in order for complainant to return to work, her medical
documentation must state that she was not a danger to herself or others)
was lawful pursuant to the Rehabilitation Act. See EEOC Enforcement
Guidance on Disability Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act No. 915.002 (July 26,
2000).
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0120080662
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080662