0120091776
08-27-2009
Deborah L. Mapes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah L. Mapes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091776
Agency No. 4G-760-0101-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 9, 2009 final decision concerning her equal employment opportunity (EEO) complaint claiming 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
During the period at issue, complainant was employed as a City Carrier, at the agency's Melear Station in Arlington, Texas.
On May 2, 2008, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On August 23, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that she was subjected to harassment and a hostile work environment on the bases of disability (chronic diverticulitis, thyroid disease, herniated discs) and in reprisal for prior EEO activity when1:
(1) on April 17, 2008, she was taken into the office for bringing back circulars;
(2) on April 17, 2008, she was told she could not work her flats from her trash can;
(3) on April 22, 2008, she was denied 2 hours of annual leave;
(4) on April 25, 2008, her request to switch days off was denied;
(5) on April 30, 2008 and May 1, 2008, she was given Leave Without Pay (LWOP) for scheduled annual leave;
(6) on May 2 and 3, 2008, she was made to request annual leave when she had scheduled annual leave;
(7) on May 5, 2008, she was issued a Letter of Warning for improper conduct;
(8) on May 8, 2008, she was advised she would receive a 7-day suspension for bringing back circulars;
(9) on May 14, 2008, she was required to bring in medical documentation;
(10) on April 22, 2008, she was told by the Department of Labor's Office of Workers' Compensation Program (OWCP) that her neck injury case was closed and her ankle injury of April 19, 2008 was controverted; and
(11) on April 17, 2008 and May 22, 2008, she was denied access to a union steward.
On September 18, 2008, the agency issued a partial dismissal. The agency accepted claims (1) - (9) for investigation. The agency dismissed claims (10) and (11) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
By PS Form 2564-A "Pre-Complaint Counseling" dated September 25, 2008, complainant requested that the instant complaint be amended to include the following claims2:
(12) on August 18, 2008, she received a copy of her CA-1 Traumatic Injury claim form in which a supervisor stated that she intentionally or willfully harmed herself;
(13) she was treated differently than a male co-worker who also broke his ankle, and she did not get proper medical treatment;
(14) she was placed on Absence Without Leave (AWOL); and
(15) on an unspecified date, she received a letter from the Postmaster indicating that her job was in jeopardy.
On October 20, 2008, the agency issued a document titled "Acknowledgement of Amendment Request - Dismissal." Therein, the agency dismissed claims (13) and (14) on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The agency dismissed claims (12) and (15) for failure to state a claim.
At the conclusion of investigation concerning claims (1) - (9), complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On February 9, 2009, the agency issued the instant final decision.
In its February 9, 2009 final decision, the agency found no discrimination concerning clams (1) - (9). Specifically, the agency found that complainant did not establish a prima facie case of disability and reprisal discrimination.3 The agency further found that complainant did not establish a prima facie case of hostile work environment harassment discrimination. The agency found assuming, arguendo, that complainant established a prima facie case of hostile work environment harassment discrimination, management nevertheless articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Regarding claim (1), the Manager, Customer Services (MCS) stated that prior to April 17, 2008, complainant "was bringing back circulars each week and thought it was ok. On numerous occasions, [complainant] was instructed to deliver all mail and continued to bring back the circulars." MCS further stated that during the relevant time, she did not give complainant an investigative interview "which is a precursor to discipline." MCS stated that on April 17, 2008, complainant brought back circulars "so I gave her a discussion and again informed her that she needed to deliver all of her mail."
Regarding claim (2), MCS stated that on April 17, 2008, complainant was told she could not work her flats from her trash can because she was wasting time. MCS stated that the proper way to work flats "is to take the tub of flats and dump it on the ledge. You are supposed to take an armful of flats and throw them in the carrier case." MCS stated that complainant "would prop her tub on the trash can so she could walk out of her case and talk to her friend who works in the case next to her. The trash can was out of the case, which gave her the ability to talk. This was a time wasting practice so I instructed her not to so. We needed her to case her mail in a timely fashion so she could get out on the street on time and deliver all of the mail within her eight hour restrictions."
The Supervisor Customer Service (SCS) stated that complainant "had no accommodation which allowed her to work flats from a trash can, which is prohibited by all employees."
Regarding claim (3), MCS stated she does not recall complainant's request for 2 hours of annual leave on April 2, 2008. MCS stated "however, if I denied her leave based on the needs of the service, it meant I needed her to perform her duties in order to meet our obligations. [Complainant's supervisor] may have approved the request without having all information regarding our staffing and workload projections for April 2." MCS stated that because complainant's request was "incidental leave, and incidental leave needs to be requested far in advance, and one day was not sufficient."
Complainant's supervisor (S1) stated that he does not recall complainant's annual leave request for April 2, 2008. S1 stated, however, if he approved complainant's request "for two hours of leave of annual leave on April 2, 2008, it was based on the information at that time. [MCS] had the authority to override my decision as she was the station manager."
Regarding claim (4), the record reflects that complainant requested to switch her day off from April 29, 2008 to April 28, 2008 with a named employee (E1) but it was denied. MCS stated that E1 "normally leaves after a half day of work every Monday to go to a doctor's appointment. Mondays are the toughest days at the post office, so instead of having to cover only a route, we would have been required to cover a full route ([Complainant's]) and half of [E1's] route, which we were unable to do. Therefore, based on the needs of the service, I denied her request."
Regarding claim (5), MCS stated that on April 30, 2008 and May 1, 2008 complainant was given LWOP for scheduled annual leave because she left work early without permission on the two days in question. MCS stated that on April 19, 2008, complainant fell and injured her ankle while on lunch break; and was placed on Limited Duty on April 21, 2008 "and signed a modified limited duty job offer accepting 8 hours of work daily, within her medical restrictions." MCS stated that on April 28, 2008, complainant called her supervisor and requested annual leave for that day, which was approved.
MCS stated that the next day, April 29, 2008, complainant was non-scheduled. MCS stated that on April 30, 2008, complainant reported to work, cased her route and "asked to use annual leave to leave early. She was instructed that she was needed at work. [Complainant] then called Injury Compensation asking for authorization to leave work and was again told she could not leave." MCS stated that on that day, she was out of the station but when she returned to work on May 1, 2008, there was a PS Form 13 on her desk from complainant stated that she took leave and left for the day "per [named employee] in Injury Compensation." MCS stated that after two telecoms, she went to find complainant "to ask her why she left early the day before (April 30, 2008) only to find that [complainant] had again left work early without submitting a PS Form 3071. [Complainant] was instructed by her supervisors and injury Compensation that she did not have authorization to leave work early on April 30, 2008 and May 1, 2008, and did so anyway."
Regarding claim (6), MCS stated that complainant had approved annual leave for the week of April 29, 2008 through May 5, 2008 as two other named Letter Carriers. MCS stated that on March 31, 2008, a named Letter Carrier (LC) requested 24 hours of incidental annual leave for April 30, 2008 through May 3, 2008 which management denied because she had exceeded the maximum percentage of allowable leave for the relevant period. MCS stated that LC "canvassed the carriers with approved leave and requested that they turn back leave to accommodate her request." MCS stated that while one carrier did not turn back his leave, a named carrier and complainant turned in their leave so LC could take leave. Specifically, MCS stated that complainant "verbally agreed to return a portion of her leave and committed to work 4/29 through May 1, 2008."
MCS stated that when complainant "decided to turn in her leave so [LC] could take leave, the entire block of leave was relinquished. An employee cannot pick and choose which portions of a leave approval they plan to use. When [complainant] relinquished her leave, she needed to submit subsequent requests for leave she wanted to take. Therefore, she needed to submit a 3971 for May 2 and 3, 2008."
Regarding claim (7), MCS stated that on May 5, 2008, she issued complainant a Letter of Warning for failure to follow instructions. Specifically, MCS stated that complainant "was instructed by her supervisors not to leave work early on April 30, 2008. Despite these instructions, [complainant] left early on April 30, 2008, and did so again on May 1, 2008."
Regarding claim (8), MCS denied complainant's allegation that she was advised she would receive a 7-day suspension for bringing back circulars. MCS stated that complainant "was told discipline is progressive, so if she had an official discussion and a letter of warning, a seven day suspension would be the next level disciplinary action...I merely told her that a seven day suspension would be the next level of action issued to her after a Letter of Warning."
Regarding claim (9), MCS stated that if complainant had an absence, she was required to bring in medical documentation. MCS further stated "therefore, in keeping with the ELM, she was required to bring in medical documentation to support her absence."
On appeal, complainant provides extensive arguments regarding the agency's decision. For example, complainant argues that the final agency decision was based on an incomplete investigation record. Complainant specifically argues that the agency investigation failed to collect affidavits from several named agency employees that would have been useful to the fact finder. Complainant also argues that report of investigation is "incomplete and heavily weighted toward the agency."
Further, complainant argues that even with an investigative record she deems inadequate, she nonetheless established discrimination. Complainant argues that each of the articulated reasons identified by the agency are pretexts to mask disability and reprisal discrimination.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including 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 v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment. Moreover contrary to complainant's assertions on appeal, the Commission determines that the EEO investigation was adequate. Furthermore, even assuming many of complainant's assertions on appeal, the Commission does not find sufficient evidence to prove discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision concerning claims (1) - (9) because the preponderance of the evidence of record does not establish that discrimination occurred.4
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
August 27, 2009
__________________
Date
1 For ease of reference, the Commission has re-numbered complainant's claims as claims (1) - (11).
2 For ease of reference, the Commission has numbered complainant's amended claims as claims (12) - (15).
3 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
4 On appeal, complainant does not challenge the agency's September 18, 2008 and October 20, 2008 partial dismissals concerning claims (10) - (15). Therefore, we have not addressed these issues in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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