01983251
02-25-2000
Deborah A. M. Evans, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Deborah A. M. Evans v. United States Postal Service
01983251
February 25, 2000
.
Deborah A. M. Evans,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny/Mid-Atlantic Region),
Agency.
Appeal No. 01983251
Agency No. 1C441010797
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Caucasian), color (white), reprisal (prior EEO activity),
and mental disability (job-related stress, depression and anxiety), in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.; and the Rehabilitation Act of 1973,<1> as amended,
29 U.S.C. � 791, et seq.<2> Complainant alleges she was discriminated
against when, on March 16, 1997, she was singled out and harassed with
regard to her seating assignment for casing mail. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the Commission AFFIRMS the FAD as MODIFIED.
The record reveals that during the relevant time, complainant
was employed as a Postal Service Data Systems (PSDS) Technician
at the agency's Cleveland, Ohio Processing and Distribution Center
(facility). Complainant alleged that in 1996, she reported several alleged
incidents of harassment, sexual harassment and assault by supervisors and
other employees in her PSDS Unit. Complainant's physician then recommended
that complainant be transferred to the Cleveland Air Mail Center (AMC)
so she would not be subject to an environment which leads to attacks
of anxiety or depression.<3>As a result, complainant was subsequently
provided a temporary light duty assignment in the Letter Primary Unit,
pending a permanent reassignment to the AMC. Complainant claims that
on the date at issue, while assigned to her light duty position, her
acting supervisor (S1; Black male) found her working alone casing mail
away from her duty station in what S1 deemed an unsafe location. S1
and complainant's usual supervisor (S2; Black female) conferred and
subsequently told complainant that she could work alone only if she moved
to a safer work location. Complainant claims that a similarly situated
employee not in her protected groups was working in the same unsafe
location as she was, but was not asked to move by S1 or S2. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint on May 14, 1997. At the conclusion of the
investigation, complainant received the investigative file and her hearing
rights, but as the agency did not receive a response from complainant
regarding her choice of a hearing or a FAD, the agency issued a FAD.
The FAD initially concluded, without performing the analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that complainant
established a prima facie case of race and color discrimination. The FAD
then found that complainant failed to establish a prima facie case of
retaliation, as there was insufficient evidence in the record that S1
or S2 knew of her prior EEO activity at the time they told her to move
to another work location and also as five (5) months elapsed between
complainant's prior protected activity and the agency's action in March
of 1997. The FAD further found that complainant failed to establish a
prima facie case of mental disability discrimination, as her stress,
depression and anxiety attacks did not restrict her ability to work,
and therefore she failed to demonstrate that she has a disability that
substantially limits a major life activity. In addition, the FAD found
that the comparison employee cited by complainant was not working in the
same location as complainant, and thus this employee was not similarly
situated to complainant.
The FAD further found that the agency articulated a legitimate,
nondiscriminatory reason for its action, namely, that complainant began
sorting mail in an unsafe location on her own initiative, and S1 and S2
informed her that she could continue to work alone but would have to
move to a vacant aisle which was considered a safer work location. In
addition, the FAD found that the testimony of the supervisors and the
comparison employee cited by complainant established that, contrary to
complainant's allegation, no other employee was allowed to work in the
unsafe work location which complainant was required to vacate. The FAD
then concluded that the evidence established that the legitimate reasons
articulated by the agency were not a pretext for discrimination and
complainant failed to prove that agency officials harbored discriminatory
animus towards members of her protected groups. On appeal, complainant
contends that the agency failed to consider a number of her arguments. The
agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas,
supra and Prewitt v. United States Postal Service, 662 F.2d 292 (5th
Cir. 1981)(applying McDonnell Douglas to disability cases), the Commission
finds that, even assuming arguendo, complainant established a prima facie
case of disability discrimination as defined by the Rehabilitation Act,
the agency articulated a legitimate, nondiscriminatory reason for the
its action, namely, that complainant was allowed to sort mail alone,
but began working in an unsafe work location and was moved to a vacant
aisle which was a safe work area. In so finding, we note that contrary
to complainant's allegation, no other employee was allowed to work in
the unsafe work location which complainant was required to vacate. We
further find that complainant has failed to prove by a preponderance of
the evidence that more likely than not, the agency's articulated reason
for changing her seating assignment was a pretext for discrimination.
However, we disagree with the FAD's finding that complainant established
a prima facie case of race and color discrimination, as there
is insufficient evidence in the record to establish that a similarly
situated employee not in her protected group was treated differently
with regard to work location. McDonnell Douglas, supra. There is no
evidence to suggest that a non-white employee was allowed to work in an
unsafe location while complainant was forced to move, and in fact the
comparison employee cited by complainant stated that she did not work near
complainant at the time of the incident. See Formal Record, at page 155.
We further find that although complainant alleged she was harassed,
the agency failed to analyze whether or not complainant's allegations
set forth facts sufficient to establish the existence of a hostile
work environment. We remind the agency of its obligation to identify
every appropriate theory of discrimination alleged, and conduct an
analysis based on a harassment theory whenever harassment is properly
alleged. Nevertheless, based on the record, the Commission concludes
that complainant has failed to demonstrate that the agency's request
to have her move her seating assignment for casing mail to a safer
area on one occasion was sufficiently severe or pervasive to create an
environment that a reasonable person would find hostile or abusive. See
Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).
Furthermore, the Commission agrees with the FAD that complainant failed
to establish a prima facie case of retaliation, as she failed to provide
evidence that S1 or S2 knew of her prior EEO activity at the time she
was required to move to another work location in March of 1997. Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). Therefore, after a careful review of the
record, and arguments and evidence not specifically addressed in this
decision, the FAD is AFFIRMED as MODIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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
February 25, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
3 The record reflects that complainant does not suffer from job-related
stress, depression and anxiety when she is allowed to work alone, and
is able to work productively when separated from other employees.