0120071623
06-17-2009
Essaquena Harris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Essaquena Harris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071623
Hearing No. 440-2006-00016X
Agency No. 1J607007205
DECISION
On January 26, 2007, complainant filed an appeal from the agency's
December 22, 2006 final order concerning her equal employment opportunity
(EEO) complaint alleging 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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Rehabilitation Mail Processing Clerk, at the agency's Chicago
Processing and Distribution Center.
On September 20, 2005, complainant filed an EEO complaint alleging
that she was discriminated against on the bases of disability (back and
shoulder) and reprisal for prior protected EEO activity when:
1. on May 17, 2005, her supervisor addressed her in a hostile voice
while requesting a doctor's statement and threatened to have her removed
from the premises;
2. on June 27, 2005, she was not properly paid for forty (40)
hours of leave requested;
3. she was informed she could not work overtime in the Manual Unit;
4. she was informed that her rehabilitative job offer was to
be modified because it forced her to work outside of her medical
restrictions; and
5. she was informed that medical clearance from her doctor was needed
in order to allow her to work overtime.
By letter dated August 15, 2005, the agency dismissed complainant's
claims that on April 26, 2005, her Supervisor told her that the sound of
her voice makes her feel like jumping on her; and on April 28, 2005, her
Supervisor violated her privacy by writing her full social security number
on the back of an EERS Report and leaving it on the post for three tours.
The agency dismissed these claims as untimely filed. Further, the agency
dismissed the claims that on May 19, June 15 and 16, 2005, her Supervisor
constantly checked on her and paged her while assigned to the Manual
Unit; and on June 15, 2005, she was told that she could not take mail
These claims were dismissed by the agency for failure to state a claim.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On February 28, 2006, complainant raised the
dismissed issues with the AJ. However, on March 2, 2006, the AJ found
complainant's objection about the dismissed issues was not timely raised.
On April 17, 2006, the agency filed its Motion for Summary Judgment,
and complainant responded on May 8, 2006. On August 26, 2006, the AJ
found there were issues of material fact in dispute, and denied the
agency's motion.
On October 5, 2006, the case was set for a hearing. However, after
complainant rested her case in chief, the agency "reinstated" its Motion
for Summary Judgment,1 which the AJ granted. On December 13, 2006,
the AJ issued a decision finding no discrimination.
It his decision, the AJ found complainant was not an individual with
a disability because her impairments do not substantially limit any
major life activity. With respect to her remaining claims, the AJ
found that the supervisor's use of a loud voice did not rise to the
level of harassment. The AJ further found that, although complainant
was improperly paid, her leave was adjusted and complainant was timely
reimbursed for the error. The AJ found complainant was not denied
overtime on the day in question; rather, her supervisor offered it to her,
but complainant declined and went home. As for complainant's claim that
she was told her rehabilitation job was going to be modified because it
required her to work outside of her medical restrictions, the AJ found
this was done out of a concern for her safety, and was not done with
any discriminatory intent. Finally, the AJ found that the agency did
not act improperly when it denied complainant overtime because the work
was not within her medical restrictions.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends there are material facts in dispute,
and argues that the AJ erred when he failed to entertain her objection to
the dismissal of certain issues. In response, the agency maintains that
the AJ's decision was correct, and asks that we affirm its final order.
ANALYSIS AND FINDINGS
As an initial matter, we will address the agency's decision to dismiss
certain issues. Specifically, the agency dismissed the following claims
as untimely:
A. on April 26, 2005, her Supervisor told her that the sound of her
voice makes her feel like jumping on her; and
B. on April 28, 2005, her Supervisor violated her privacy by writing
her full social security number on the back of an EERS Report and leaving
it on the post for three tours.
The agency dismissed the following claims for failure to state a claim
upon which relief could be granted;
C. on May 19, June 15 and 16, 2005, her Supervisor constantly checked
on her and paged her while assigned to the Manual Unit; and
D. on June 15, 2005, she was told that she could not take mail to the
station.
Complainant raised an objection with the agency regarding the dismissal
on August 17, 2005. When the case was assigned for a hearing, the
AJ advised complainant that if she desired to object to the dismissed
issues, she needed to do so within 30 days from the date of the AJ's
Acknowledgement Order. Complainant then raised her objection with the AJ,
but the AJ determined this was not timely done, and found her objection
to these issues was waived.
While we disagree with the AJ's decision not to entertain complainant's
objection to the dismissed issues, we nonetheless find that the agency's
decision to dismiss was correct because none of the four issues state a
claim under the EEOC regulations. Complainant failed to show that she
suffered harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Moreover, to the
extent complainant is claiming a discriminatory hostile work environment,
we find that the events described, even if proven to be true, would not
rise to the level of being sufficiently severe or pervasive to alter the
conditions of his employment. See Cobb v. Department of the Treasury,
Request No. 05970077 (March 13, 1997). Accordingly, the agency's decision
to dismiss these issues is affirmed.
Regarding the AJ's decision on the remaining issues, 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so lacks
in credibility that a reasonable fact finder would not credit it. See
EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, AJ essentially issued a directed verdict at the conclusion
of complainant's case in chief. The Commission notes that there is no
mechanism for a "directed verdict" in the EEOC hearing process. However,
under 29 C.F.R. � 1614.109(e), the AJ has the power to regulate the
conduct of the hearing, limit the number of witnesses where the testimony
would be repetitious, and exclude irrelevant evidence. Upon review,
we find nothing improper in the AJ's actions during the hearing or in
his issuance of a decision in favor of the agency after complainant
presented her case, without hearing the testimony of any witnesses on
behalf of the agency.2
After a review of the record, we find there is substantial evidence
to support the AJ's finding of no discrimination. Assuming, without
deciding, that complainant is an individual with a disability, we
find she failed to present evidence that she was treated differently
than similarly-situated individuals outside of her protected class,
and failed to dispute the agency's reasons for its actions. The record
reveals that all employees in complainant's unit were asked to provide
updated medical documentation, and when complainant failed to do so,
she was asked to leave the building. Further, there is no dispute that
complainant's time and attendance was corrected, and complainant admits
that she was, in fact, offered overtime on the day in question.
Finally, to the extent that complainant was asked to provide medical
documentation, we note that an employer may request medical documentation
from an employee or require a medical examination of an employee only if
the request or examination is job-related and consistent with business
necessity. See Enforcement Guidance: Disability-Related Inquiries and
Medical Examinations of Employees under the Americans with Disabilities
Act (July 27, 2000) (web version) (Guidance), at 5. This requirement
is met when the employer has a reasonable belief, based on objective
evidence, that (1) an employee's ability to perform the essential job
functions is impaired by a medical condition; or (2) that an employee
poses a direct threat due to a medical condition. See Guidance at 14.
We find the agency's request under the circumstances to be reasonable.
Complainant failed to provide sufficient evidence that would suggest
the agency's reasons for its actions were a pretext for discrimination
or retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order.
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
June 17, 2009
Date
1 Although the AJ and the agency characterized this turn of events as
reinstatement of the agency's motion for summary judgment, the agency's
motion at this point is more properly characterized as a motion for a
directed verdict.
2 The AJ's decision indicates that the AJ considered the agency's motion
for a directed verdict to be the equivalent of a motion for summary
judgment. However, we find that the AJ's decision is more appropriately
considered as a decision after a hearing.
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0120071623
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120071623