0120090318
03-04-2009
Erlinda R. Arca, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Erlinda R. Arca,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090318
Agency No. 1C-401-0034-07
DECISION
Complainant filed an appeal with this Commission from the September 15,
2008 agency decision which found no discrimination.
Complainant alleged that the agency discriminated against her on the
bases of race (Asian/Pacific Islander), sex (female), national origin
(Filipino), disability (cervical and thoracic strain and subscapular
contusion), and reprisal (prior EEO activity) when:
1. During October 2006 through December 2006, complainant was not
allowed to trade seats
with other employees while working on the machine.
2. On March 28, 2007, complainant was given a job offer with a reporting
time which was 15 minutes later than her usual reporting time.
3. On March 28, 2007, complainant was told she could not go into the
small parcel sorting
machine area, but that she was to stay in her immediate work area.
4. On March 28, 2007, complainant was given a pre-disciplinary
interview.
5. On March 28, 2007, complainant was told she could only request to
see a union steward
once per day.
6. On an unspecified date in June 2007, the Acting Supervisor was
instructed not to input complainant's time into the Time and Attendance
Control System (TACS) because complainant had not supplied the proper
medical documentation.
After investigation, complainant requested a hearing. Complainant
subsequently withdrew her request and the agency issued a decision.
In its Partial Acceptance/Partial Dismissal of the complaint, the agency
dismissed claims 1, 3, 4, 5 on the grounds that the claims failed to state
a claim. Although the agency did not identify harassment as a claim when
it listed the claims in its dismissal, the agency also concluded that
considering the circumstances and the actions complained of, and even
if true, the incidents were neither sufficiently severe nor pervasive
to create a discriminatorily abusive or hostile work environment.
In its decision finding no discrimination, the agency incorporated its
partial dismissal of claims 1, 3, 4, and 5. Regarding claims 2 and 6,
the agency found that complainant failed to establish a prima facie
case. Regarding complainant's alleged disability, the agency found
that complainant failed to establish a prima facie case of disability
because she had not shown that she was substantially limited in a major
life activity. The agency also concluded that even if complainant had
established a prima facie case, the agency had articulated legitimate,
nondiscriminatory reasons for its actions, noting the statements of the
Manager of Distribution Operations (MDO) and the Acting Supervisor of
Distribution Operations (SDO) in its decision.
Regarding claim 2, the agency noted in its decision that the MDO stated
that complainant claimed to have been injured during an altercation
with another employee. The agency also noted that the MDO stated that
he believed that complainant should have no contact with the employees
in her regular job assignment while an investigation was underway and,
as a result, he provided complainant with manual distribution duties
which were removed from other employees while the investigation was
being conducted. The agency noted that the MDO stated that there
was no work available within the work area where complainant normally
worked and that he created an assignment with a later reporting time
to minimize the opportunity for complainant's further contact with the
employee complainant claimed had caused her work injury. The agency
noted also that the SDO stated that complainant was concerned that her
co-workers were trying to hurt her so that she offered complainant a
starting time either 15 minutes later or earlier to protect complainant
and make complainant feel more comfortable. The agency noted further
that the SDO stated that with the 15-minute change in starting time
the employees concerned would either be in their work area or gone and
complainant would not have to be near them. The agency noted that the
SDO also stated that she relied on the agency's Zero Tolerance Policy
with its stated obligation to provide a safe environment.
Regarding claim 6, the agency noted that the MDO stated that he was
the Lead Manager for the tour of duty and the circumstances and type of
leave which complainant was requesting were inconsistent with the leave
categories for her status. The agency noted further that the Eastern Area
Shared Services Center's Case Manager had advised him to input leave type
Office of Workers' Compensation Programs' (OWCP) Code 049 leave without
pay. He also stated that complainant's leave was properly accounted for.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will 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
[and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17
(1993).
Because 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).
Upon review, the Commission finds that the agency did not discriminate
against complainant. The agency articulated legitimate, nondiscriminatory
reasons for its actions and complainant failed to show that the agency's
reasons were mere pretext to hide unlawful discrimination and that the
agency was motivated by discriminatory animus.
Initially, we find that the agency properly dismissed the claims for
failure to state a claim. We find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Even assuming that complainant
is a person with a disability, the record does not support a finding
that the agency discriminated against her because she was disabled.
Complainant alleged that on February 8, 2007, she was struck from
behind by a co-worker who hit her in the right shoulder blade, causing
her body to lurch forward with her head snapping upwards and backwards.
Complainant also alleged in a notice of injury to the Office of Workers'
Compensation Programs that the incident caused cervical sprain and a
scapular contusion. Complainant applied for workers' compensation
benefits. The record reveals that the agency offered complainant
a modified assignment as a manual letters clerk in the Manual Letters
Unit on March 28, 2007, with a change in her starting time. The record
also reveals that complainant accepted the offer on the same date, the
date of her return to work. At the time of the work incident, the offer
revealed that complainant worked as a Parcel Post Machine Distribution
mail processor. The record reveals that complainant was offered the
new starting time because of the alleged altercation. The affidavit of
the SDO reflects that prior to complainant's return to work on March
28, 2007, the entire Small Parcel Bundle Sorter (SPBS) staff asked to
speak to the SDO because of the staff's concern that complainant would
retaliate against them and, because of that feeling, the staff did not
want to be around complainant. The SDO's affidavit also reflects that
the SPBS staff submitted statements concerning different incidents in
which complainant had been involved. The MDO's affidavit reflects that
an agency investigation was underway concerning the alleged altercation
when complainant was offered the modified assignment of a manual letters
clerk. The MDO stated that it was felt that complainant should not have
contact with the other employees in her regular job assignment during the
investigation and he was able to provide complainant with the modified
assignment, consistent with her restrictions and the needs of the agency.
Regarding claim 6, we find that the MDO coded complainant as he
had because she lacked the required documentation and not for any
discriminatory reason. The record also reveals that the 049 code
related to OWCP leave without pay status.
To the extent that complainant is claiming that she was subjected to a
hostile work environment, the Commission cannot find that the incidents,
even considering the dismissed claims and accepting all claims as true,
were motivated by discriminatory animus. Complainant failed to show
that any of the claimed harassment was linked to her membership in a
protected group.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
The agency's finding of no discrimination is AFFIRMED.
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
March 4, 2009
__________________
Date
6
0120090318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013