0120072531
10-02-2009
Eugenia D. Boze, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eugenia D. Boze,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072531
Agency No. 4E-640-0104-06
DECISION
Complainant appeals to the Commission from the agency's decision dated
April 11, 2007, finding no discrimination. In her complaint, dated
September 18, 2006, complainant, a Window Clerk at the agency's Salem
Post Office, located in Salem, Missouri, alleged discrimination based
on religion (Jehovah's Witness), disability (anxiety disorder, pelvic
pain syndrome, ankle pain, and foot pain), and in reprisal for prior
EEO activities when:
(1) Since March 23, 2006, and ongoing, she was harassed for making
management aware of a sexual harassment complaint;
(2) On June 21, 2006, she received a Letter of Warning (LOW) for failure
to meet attendance requirements;
(3) On August 14, 2006, she received a Seven-Day Suspension for being
Absent Without Leave (AWOL); and,
(4) On September 26, 2006, she was notified that she would be removed
from the Postal Service effective October 27, 2006, for being AWOL from
August 6, 2006, and continuing.
After completion of the investigation of the complaint, complainant did
not request a hearing. The agency thus issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its actions,
which complainant failed to rebut. Initially, we note that on October
16, 2006, the agency previously issued the partial dismissal concerning
her faxing of medical documents. Since complainant does not contest
this dismissal on appeal, and because we see no error in the agency's
dismissal, we need not alter the agency's finding.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged incidents.
With regard to claim (1), complainant claimed that her coworker
sexually harassed her on March 23, 2006, when he made the statement that
"I've been in both your drawers" to her and another female employee.
Complainant indicated that at that time, she told the coworker not to make
such comments, and he agreed to refrain from doing so by shaking hands
with her. Complainant's Postmaster stated that when complainant told
him about the incident on March 24, 2006, he immediately investigated it.
The coworker told him that he made the statement because he was looking
for a lost ledger book, to which complainant did not dispute, and did not
mean anything sexual by the comment and the female employee also concurred
with him that she did not understand the comment to be one with sexual
connotations. The Postmaster stated that he nevertheless conducted a job
discussion with the coworker to make certain he was aware of the agency's
anti-sexual harassment policy. There is no evidence in the record that
the coworker made any comments similar to the one at issue thereafter.
In addition, the agency indicated that other than her mere assertions,
there is no evidence of the alleged harassment toward complainant from
other agency employees.
With regard to claims (2) and (3), complainant's supervisor indicated
that he issued complainant the alleged LOW and suspension, respectively,
for her failure to be regular in attendance. The supervisor stated
that the last day complainant worked was June 9, 2006, and she had
not returned to work since then; and, as a result, the removal notice,
described in claim (4), was issued to her. The agency stated that in
2005, complainant only worked approximately 350 hours as she was absent
for more than 8 months and in 2006, she only worked approximately 280
hours. Complainant does not dispute the foregoing statements on appeal.
The supervisor also indicated that complainant failed to provide any
medical documentation he requested to support her leave. Specifically, he
stated that complainant merely sent a few doctor's notes, via facsimile,
instead of in person or mail, despite his instruction not to send them
via facsimile, indicating she was having a radiology test or a physical
examination done or to be excused from her work without providing any
specific medical restrictions for her prolonged absence. In addition,
the agency noted that complainant missed so much work that she was not
eligible for the FMLA protection she was claiming.
Based on the foregoing, we find that complainant failed to show that the
agency's proffered reasons were pretextual. It is noted that we do not
address in this decision whether complainant is a qualified individual
with a disability. It is also noted that it appears that complainant
has not claimed that she was denied a reasonable accommodation. To the
extent that complainant may be alleging that she was denied a reasonable
accommodation, we find that she has not shown that she was denied a
reasonable accommodation. There is no indication that she was required
to work beyond her medical restrictions. We also find that despite
her claim, complainant failed to show that the alleged harassment was
sufficiently severe or pervasive to affect a term and condition of her
employment. Accordingly, the agency's decision finding 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
10/2/09
__________________
Date
2
0120072531
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013