07A20059_r
08-12-2004
Dean Albrecht, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dean Albrecht v. United States Postal Service
07A20059
August 12, 2004
.
Dean Albrecht,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A20059
Agency No. CC-335-0128-98
DECISION
Following its January 7, 2002 final order declining to implement an EEOC
Administrative Judge (AJ's) decision to certify the above-captioned matter
as a class complaint, the agency filed the present appeal requesting
that the Commission affirm its order.
BACKGROUND
The class agent filed a formal complaint with the agency dated September
26, 1997, alleging that he and two other employees at the agency's
Clearwater Office were discriminated against pursuant to the Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. Specifically, complainant stated that class
members were Rehabilitation Clerks who suffered permanent physical
limitations resulting from on-the-job injuries. He states that the
class was discriminated against when the Clearwater Postmaster and the
Manager of Customer Service and Mail Processing: (1) placed them in
unproductive job assignments; (2) created a hostile work environment by
disparaging them and turning �non-injured� co-workers against them; and
(3) by placing them in non-productive job assignments, segregated them
in a separate track record for advancement and promotion.
Complainant's complaint was forwarded to the EEOC Miami District
Office for a decision on certification. The Miami District Office
forwarded the complaint to the Office of Federal Operations's Complaints
Adjudication Division (CAD). A Senior Attorney/acting Administrative
Judge was assigned. After additional clarification and submissions from
the parties, the AJ issued an October 23, 2001 decision redefining and
provisionally certifying a class consisting of:
All Rehabilitation Clerks in the agency's Suncoast District[] with
physical or mental impairments substantially limiting a major life
activity, with a record of having such impairments, or regarded as having
such impairments, who as a result of being designated Rehabilitation
clerks were placed in unproductive job assignments, allowed to work in a
hostile work environment and den[i]ed promotional opportunities by being
placed in a disadvantaged track toward career advancement or promotion.
The AJ found that complainant satisfied the commonality prerequisite
under 29 C.F.R. � 1614.204(a)(2)(ii). Specifically, the AJ noted that
the class agent produced evidence of coworkers' publishing derogatory
comments about Rehabilitation Clerks, showing the agency's tolerance of
coworker mistreatment and discrimination against Rehabilitation Clerks.
He found such evidence shows across-the-board treatment of Rehabilitation
Clerks constituting a common policy against the purported class members.
The AJ also noted that the class agent has established that he and
members of the class have suffered derogatory comments. Additionally,
the AJ stated that �to the extent the class agent has established that
the agency, Suncoast District, designates employees as �Rehab employees'
I find this sufficient to raise the inference that the class has suffered
harm.�<1>
With regard to typicality, the AJ noted that the class agent was an
employee designated as a Rehabilitation Clerk and that he is employed
in the agency's Suncoast District. The AJ noted that complainant's
individual claim was that as a result of his designation as a
Rehabilitation Clerk, he suffered harm regarding job assignments,
treatment by coworkers and advancement and promotion. The AJ found
these claims typical of those of the class.
With regard to numerosity, the AJ noted that the agency identified 150
Suncoast District Rehabilitation Clerks. The AJ found �the designation
of Rehabilitation Clerk itself sufficient to identify members of the
class� and stated that under these circumstances the class agent need not
provide the names of class members until they present individual claims
for relief. The AJ found it sufficient that the agent has identified
himself and two other named Suncoast District Rehabilitation Clerks as
having suffered harm resulting from the alleged agency discriminatory
policies and practices. Thus, the AJ found that the class agent
established a class of 150 members which made joinder impracticable.
The AJ noted that the class agent had no interests antagonistic to the
class and found that he will fairly and adequately protect the interest of
the class. However, the AJ noted that at this point for the class agent
to continue prosecuting the matter without benefit of competent counsel
as the case proceeds to the merits phase could do grave disservice
to the class members. Thus, the AJ provisionally certified the class
pending the class agent's retention of a competent attorney.
In his October 31, 2002 Order, the AJ noted that a similar class
complaint was pending before an AJ in the EEOC's Denver District Office
and transferred the present case to the Denver AJ for consolidation with
the pending class action, Glover v. USPS, Agency No. CC-335-0128-98.
On December 14, 2001, the AJ in the Denver District determined that
not all of the claims in the present case fall within the realm of the
Glover case. The AJ noted that the issue in Glover involves:
[W]hether employees who hold or have held permanent rehabilitation
positions from July 1992, to the present have been denied promotional
and/or advancement opportunities allegedly due to discrimination on the
basis of disability.
The Denver AJ found that not all the claims in the present case involved
the same issue as the claims in Glover and consolidated those that did
and severed those claims which did not. The Denver AJ ordered that those
issues that do not fall within Glover to be processed as a separate
class action. Additionally, the Denver AJ found that the counsel of
record in Glover had entered an appearance as class representative in
the present case, and was competent to serve as attorney for the class.
Accordingly, the Denver AJ adopted and incorporated the acting AJ's
October 23, 2001 provisional certification, and certified the class as
it related to claims not part of Glover. Thus, the agency was ordered
to process the class allegations in the present case which do not relate
to those issues subsumed within Glover and do not relate to promotional
and/or advancement opportunities of permanent rehabilitation employees.
On January 7, 2002, the agency issued a final decision declining to
implement the Denver AJ's decision and concurrently filed the present
appeal. On appeal, the agency argues that the class agent failed to
satisfy the certification prerequisites for the two remaining issues
in the present case: (1) whether the class members have been subjected
to a hostile work environment; and (2) whether class members have been
given unproductive work assignments. Specifically, the agency claims
that the class agent has failed to satisfy the numerosity requirement
necessary for certification. The agency states that complainant
erroneously contends that one's status as a Rehabilitation Clerk, in
and of itself, automatically conveys class member status. The agency
notes that although complainant was provided the specific identity of
150 Rehabilitation Clerks by the agency in discovery, the class agent
failed to locate any more class members other than the two specified
in his complaint, who were allegedly adversely affected by the agency's
allegedly discriminatory policy.
Additionally, the agency argues that complainant failed to establish
commonality and typicality. The agency states that complainant presented
nothing more than conclusory allegations that the class has suffered
disability discrimination because of their duty-restricted positions.
The agency notes that complainant failed to provide any information
as to what promotions, awards, opportunities for upward mobility,
or examples of more productive work which the agency could have
provided. Additionally, the agency argues that the present allegations
involve individuals with restricted assignments due to a variety of
medically imposed physical limitations and who have a variety of work
responsibilities based on their modified positions. The agency claims
that these allegations involve largely individualized occurrences, which
call for individualized remedies if appropriate. The agency explains
that each job for a Rehabilitation Clerk is individually crafted at
the installation where the clerk works, with the ultimate approval
of the Department of Labor and the input of a physician in order to
ensure that the job requirements fall within the physical limitations
resulting from the on-the-job injury. The agency argues that due to
the variety of work place injuries sustained, and due to the nature of
their individually designed job created for each Rehabilitation Clerk,
there is no evidence that there exists common questions of fact among all
Rehabilitation Clerks in the Suncoast District. Moreover, the agency
claims that complainant failed to establish commonality with regard to
the two identified clerks, noting that both of the other named class
members work in different positions than complainant. Additionally,
the agency argues that complainant failed to present evidence that the
agency has regarded members of the purported class as disabled or that the
agency has placed Rehabilitation Clerks in unproductive work assignments.
Finally, with regard to complainant's hostile work environment claim, the
agency states that complainant has only listed a few comments allegedly
made to Rehabilitation Clerks, or made in their presence, which he
alleges constitute a hostile environment. The agency claims that the
class agent has offered no evidence that these comments give rise to
anything other than several individual claims at most. The agency
states that the class agent has provided no proof that Rehabilitation
Clerks, as a group, have been exposed to a hostile work environment.
The agency further notes that a finding of a hostile work environment
requires an examination of the totality of the circumstances, and that
this differs from one work location to the next.
In response to the agency's appeal, the class agent states that
he has established numerosity by identifying 150 individuals in
the Suncoast District with the designation of Rehabilitation Clerk.
With regard to commonality, the class agent states that evidence shows
an across-the-board treatment of Rehabilitation Clerks and reveals a
common practice or policy against Rehabilitation Clerks. The class
agent notes that he is a Rehabilitation Clerk and that his individual
claim mirrors those of the class. With regard to the agency's position
that the claims should be processed as individual complaints, the class
agent argues that the agency will have an opportunity in the relief stage
to make its argument that the individual claimants are not entitled to
relief based on an individualized assessment.
ANALYSIS
At the outset the Commission will clarify the issues involved in
the present case. As discussed above this class complaint originally
involved the claim that Rehabilitation Clerks in the agency's Clearwater
Office were discriminated against when management: (1) placed them in
unproductive job assignments; (2) created a hostile work environment
by disparaging them and turning �non-injured� co-workers against them;
and (3) by placing them in non-productive job assignments, they were
segregated in a separate track record for advancement and promotion.
Based on a provisional certification of the class, the complaint was
forwarded to an AJ in Denver for consolidation with the Glover class
complaint. The Glover case was certified to include:
Employees who hold or have held permanent rehabilitation positions from
July 1992, to the present have been denied promotional and/or advancement
opportunities allegedly due to discrimination on the basis of disability.
The record reveals that a proposed settlement was agreed to by the parties
in Glover on November 20, 2003, which was modified on January 7, 2004.
The proposed settlement agreement was approved by the AJ in Denver on
June 10, 2004. A review of the Glover settlement agreement reveals
that the term �advancement opportunities� was defined as �[v]ertical
movement from a lower level grade and/or pay within the USPS system to
a position at a higher level grade and/or pay.� Further the phrase
�promotional opportunities� was defined to include �[a]ssignments,
details, awards and formal training that would have enhanced a class
member's qualifications for promotion.�
In the present appeal, we note that neither party disputes that issue
(3), involving being placed in a disadvantaged track toward career
advancement or promotion, was subsumed in the Glover case. Additionally,
upon review of the record we find that issue (1), involving being placed
in unproductive job assignments, was also subsumed within the Glover case.
In the formal class complaint the class agent states that �[b]y placing
Rehab Clerks in non-productive job assignments [sic], it is impossible
for the rehab Clerks to get the job knowledge necessary to receive
promotions.� Since the Glover settlement specifies that �promotional
opportunities� to include job assignments that would have enhanced a class
member's qualifications for promotion, we find that issue (1) was subsumed
within Glover. Having found that issues (1) and (3) were subsumed and
settled in Glover, this decision will now address the propriety of the
AJ's certification of issue (2), concerning the hostile work environment.
The record contains an August 21, 1997 statement signed by the class agent
and the two identified class members. This statement describes that an
unidentified Rehabilitation Clerk was verbally attacked on the workroom
floor by a supervisor. It also describes an incident on August 13,
1997, when another Rehabilitation Clerk overheard two regular employees
stating that the injured employees are �useless� and should be let go.
When the clerk brought the complaint to the attention of a supervisor,
the supervisor questioned the parties involved. Additionally, on August
14, 1997, �one of the two employees was walking down the walkway as one
of the employees in question and the employee made a point to walk so
close to the Rehab that shoulders were bumped.�
The record contains an August 16, 1997 statement signed by the class
agent and the two identified class members. This statement alleges that
Rehabilitation Clerks are constantly being asked if they are able to do
one job or another. It also states that when Rehabilitation employees
are assigned into positions not within their medical restrictions,
�a loud verbal argument takes place, or a smart comment is made.
Again creating a hostile work environment for the Rehabs.�
In a September 24, 1997 letter signed by the class agent and the two named
class members, they explain that in an eight-hour day, at least four hours
of the day are spent without available work. This situation allegedly
leaves Rehabilitation Clerks with no work, which brings on comments of
a hostile nature from other non-injured employees. Additionally, the
class agent states that numerous negative comments have been overheard by
Rehabilitation Clerks, including one by the Manager of Customer Service
and Mail Processing stating, �if it were up to me I would get rid of
all the Rehab Employees.� The class agent states that these statements
spread throughout the workroom floor and �give the non-injured employees
a green light to ridicule the Rehab Clerks. Thereby creating a hostile
work environment for injured employees.�<2>
In a November 30, 2000 letter to the Acting AJ, the class agent stated
that he has copies of a document passed around calling Rehabilitation
employees �the sick, lame, and lazy.� Additionally, complainant supplies
an unsigned April 1996 document (not on any letter head) entitled �The
�Well, I'll Be Damned,'� advising, �This is a special message to the
majority of people on the Sick, Lame and Injured list; Try giving a
good hard days work once in a while, it might be just what you need
for recovery.�
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
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). Moreover, the Commission has repeatedly found
that remarks or comments unaccompanied by a concrete agency action
usually are not a direct and personal deprivation sufficient to render
an individual aggrieved. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable person in
the complainant's circumstances would have found the alleged behavior to
be hostile or abusive. Even if harassing conduct produces no tangible
effects, such as psychological injury, a complainant may assert a cause
of action if the discriminatory conduct was so severe or pervasive that it
created a work environment abusive to employees because of their protected
group status. 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)), req. for recons. den., EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with
an employee's work performance. Harris, 510 U.S. at 23.
Upon review, we find that the issue of the hostile work environment
should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim. The alleged incidents of harassment identified by
the class agent include at most the three comments described above in
August 1997; one incident on August 14, 1997, where a non-injured employee
bumped shoulders with a Rehabilitation Clerk; the alleged questioning of
unspecified Rehabilitation Clerks' ability to do their job; and a note,
from a year earlier in April 1996, referring to Rehabilitation Clerks as
�Sick, Lame and Injured.�<3> The Commission finds the alleged incidents
described are not sufficiently severe or pervasive to constitute a
hostile work environment.<4>
Accordingly, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 12, 2004
__________________
Date
1The AJ also found, however, that despite the
class agent's claims of a nationwide policy by the agency, no potential
class members had been identified outside the Suncoast District, and
noted that a regional or nationwide designation was too cumbersome.
2In his brief postmarked January 23, 2000, the class agent states that
this statement was made the same week as the conversation between the
two employees stating that Rehabilitation Employees are �useless.�
3We note that to the extent the class agent is alleging that harassment
also includes being given unproductive job assignments and denied
promotional opportunities, these issues are found to have been subsumed
in the Glover class action case.
4EEOC Regulation 29 C.F.R. � 1614.204(d)(7) provides that the agency's
final order dismissing a class complaint shall inform the agent either
that the complaint is being filed on that date as an individual complaint
of discrimination and will be processed under subpart A or that the
complaint is also dismissed as an individual complaint in accordance
with 29 C.F.R. � 1614.107. Unless it has already done so, the agency
shall process complainant's individual complaint under Subpart A of 29
C.F.R. Part 1614.