01994394
01-16-2002
Dorothy G. Lincoln, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Great Lakes Area, Agency.
Dorothy G. Lincoln v. United States Postal Service
01994394
01/16/02
.
Dorothy G. Lincoln,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Great Lakes Area,
Agency.
Appeal No. 01994394
Agency No. 4-J-606-1096-96 et al.
Hearing No. 210-98-6042X et al.
DECISION
Dorothy G. Lincoln (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of physical disability (hearing impairment),
and reprisal for engaging in protected EEO activity, in violation of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
The appeal is accepted in accordance with 29 C.F.R. �1614.405. For the
following reasons, the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issues on appeal are whether complainant was subjected to
discrimination when:
she was purportedly harassed by co-workers on December 22, 1995;
she was transferred to the Graceland Carrier Annex on June 1, 1996;
she was denied family medical leave (FML) and management went against
her medical restrictions in June 1996;
she was sent home for no reason on or about November 25 and 26, 1996;
she was placed on emergency suspension on December 9, 1996; and
she was suspended for seven days on December 26, 1997.
BACKGROUND
The record reveals that when complainant filed the complaints that
form the basis of this appeal, she was employed as a City Letter
Carrier PS-05, at the Graceland Carrier Annex in Chicago, Illinois.
According to complainant, she was subjected to ongoing discrimination when
her co-workers and agency officials constantly made humiliating remarks
about her hearing impairment, refused to talk to her, and sent her home
for no reason. Complainant also alleged that management officials
screamed at her and used profanity towards her in front of others.
Further, complainant alleged that the agency officials assigned her
work which was contrary to the restrictions imposed by her doctor,
refused to grant her leave under the Family Medical Leave Act (FMLA),
and placed her on emergency suspension. Complainant also challenged
the seven day suspension which she received for her irregular attendance.
After the expiration of 180 days, complainant through her attorney
requested that all of her formal complaints be consolidated and forwarded
to the Equal Employment Opportunity Commission for a hearing before
an Administrative Judge (AJ). Pursuant to complainant's request,
her complaints were consolidated on or around October 20, 1997 and
subsequently forwarded to the EEOC for a hearing. The AJ held hearings
in this case on October 15-16, 1998. As a preliminary matter, the
AJ held that complainant was disabled under the Rehabilitation Act,
due to her hearing impairment. The AJ also characterized the case as
one of disparate treatment since the complainant did not seek any form
of reasonable accommodation from the agency. Moreover, the AJ found
that all of the named agency officials knew of complainant's prior EEO
activity when they took the challenged personnel action. In spite of
these preliminary findings, the AJ ultimately held that complainant did
not prove by a preponderance of the evidence that she was subjected to
discrimination due to her disability or reprisal.
Issue #1:
With respect to the first issue, the AJ found that complainant failed to
establish a prima facie case of harassment. As such, the AJ indicated
that a short exchange between complainant and a co-worker on December 22,
1996, did not interfere with complainant's ability to do her work.<1>
Issue #2:
The AJ found that complainant failed to show that the reason articulated
by the agency for canceling her detail to the Claims/Inquiry Unit on May
30, 1996, was a pretext for intentional discrimination. In this regard,
the AJ found that the agency submitted uncontested evidence showing that
it cancelled complainant's detail because she had an excessive amount
of absences.
Issue #3:
With respect to this issue, the AJ found that complainant failed
to establish a prima facie case showing that the agency acted with
discriminatory animus when it assigned her work outside of her medical
restrictions and when it refused to grant her FML in June 1996. In the
alternative, the AJ found that even if complainant was able to establish a
prima facie case in relation to this issue, she failed to show pretext.
Specifically, the AJ found that the Tour Superintendent changed
complainant's job assignment to filing immediately after complainant
told her that casing mail violated her work restrictions. Further, the
AJ found that the agency mistakenly denied complainant FML because it
believed that such leave was not for personal use. The AJ added that
once the agency found out that FML could be used by employees for their
personal use, it granted complainant such leave in September 1996.
Issue #4:
The AJ found that complainant failed to establish a prima facie case
showing that the agency acted with discriminatory animus when it sent
her home on November 25 - 26, 1996. In this regard, the AJ found that
the agency established that complainant was paid for a full eight hour
day on November 25, 1996, and she was paid for approximately three hours
on November 26, 1996, while she took 5� hours of LWOP for the remainder
of the day.
Issue #5:
Similarly, the AJ found that complainant failed to establish a prima facie
case with respect to her placement on emergency leave on December 9, 1996.
In reaching this finding, the AJ noted that on the day in question,
complainant's supervisor confronted her about not wearing the required
uniform to work and he directed her to put on the required attire and
return to work. Despite her supervisor's instructions, the AJ noted
that the evidence showed that complainant did not return to work that
day, and consequently, she was placed on leave without pay status for
the remainder of the day.
Issue #6:
Addressing this issue, the AJ found that complainant failed to show
pretext or reprisal with respect to her seven day suspension. In reaching
this finding, the AJ held that complainant failed to rebut the agency
officials' testimony that it suspended her because she failed to return
to work after a visit to the agency's Injury Compensation Unit, and she
failed to notify the agency of her whereabouts for the next two days.
In a final agency decision dated April 14, 1999, the agency adopted the
decision of the AJ.
CONTENTIONS ON APPEAL
On appeal complainant focused her comments mainly on Issues #2 and #5.
With respect to Issue #2, complainant states that the sequence of events
between her testimony in another employee's EEO case and her transfer
from the Main Post Office (MPO) back to Graceland Carrier Annex leads
to the conclusion that this personnel action was retaliatory in nature.
In this regard, complainant argues that there was no documentation
on file supporting the reason articulated by the agency official
(complainant's poor attendance and disruptive behavior) for ending her
detail at the MPO. With respect to Issue #5, complainant argues that the
AJ failed to address the conflict in testimony of the agency's officials.
In this regard, complainant argues that her immediate supervisor testified
that he placed her on emergency suspension because she did not wear the
proper uniform and she did not return to work that afternoon while the
concurring official, which was complainant's second level supervisor,
testified that complainant was placed on emergency suspension because
she created an unsafe environment for other employees.
On a general note, complainant argues that the AJ did not evaluate the
agency witnesses' testimony from a cumulative standpoint. If he did
engage in such an analysis, complainant states that the AJ would have
found that the agency officials subjected her to harassment in light
of her assertion that they questioned her about the testimony she gave
in another employee's EEO administrative hearing. Complainant also
argues that the AJ did not properly evaluate the credibility of the
agency officials.
In its appeal statement, the agency states that it stands by its final
agency decision and it asks the Commission to dismiss complainant's
appeal.
ANALYSIS AND FINDINGS
As an initial matter, we note that by adopting the AJ's recommended
decision as its final decision, the agency conceded that complainant is a
qualified individual with a disability as defined by the Rehabilitation
Act. Therefore, this issue is not before the Commission on appeal and
need not be further discussed or addressed. See Williams v. United
States Postal Service, EEOC Appeal No. 01973755 (September 10, 2000).
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).
In his decision, the AJ made the credibility finding that all the named
agency officials were aware of complainant's prior EEO activity when they
took the challenged personnel actions. This finding is consistent with
complainant's testimony and was favorable to her ability to establish a
prima facie case of reprisal. The credibility determination of the AJ
will not be disturbed, unless it is not supported by substantial evidence.
See Universal Camera Corp supra. Moreover, the Commission rules that
in those instances where complainant established a prima facie case,
the AJ accurately ruled that she was unsuccessful in rebutting the
reasons articulated by the agency for its actions. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).
With respect to complainant's allegation of harassment, we note that
judicial courts have held that in order for harassment to be considered
as discriminatory, it must be pervasive or severe enough to significantly
and adversely alter the conditions of the victim's employment and create
an abusive working environment. See Harris v. Forklift Systems Inc.,
114 S.Ct. 367 (1993); see also, Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Consistent with the Commission's policy, we find
that taken individually or together, the allegations of harassment raised
by complainant in her complaint were not severe enough to unreasonably
interfere with her work performance.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws in this case. We discern
no reason to disturb the AJ's decision.
CONCLUSION
The agency's finding of no discrimination with respect to the challenged
actions is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
01/16/02
__________________
Date
1 According to testimony at the hearing, a
co-worker of complainant greeted her in the morning and complainant did
not respond. The co-worker testified that she did not know how to deal
with complainant's mood swings, so she told complainant that they should
limit their interaction to greeting each other. Hearing Transcript (HT)
pp. 415-6.