01a40490
04-27-2005
Ginger Murphy-Phillips, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ginger Murphy-Phillips v. United States Postal Service
01A40490
April 27, 2005
.
Ginger Murphy-Phillips,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40490
Agency No. 1D-241-0006-00
Hearing No. 120-A1-4238X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant, a Small Parcel Bundle Sorter (SPBS) Clerk, PS-05, at the
agency's Roanoke Processing and Distribution Center in Roanoke, Virginia,
filed a formal EEO complaint on April 17, 2000, claiming that the agency
discriminated against her on the bases of race (Caucasian), sex (female),
religion (Baptist), color (white), and age (D.O.B. 12/10/50) when she
was subjected to harassment for the period July 1999 to February 2000;
and retaliated against for the period January 22, 2000 to February 2000,
as a result of her prior protected activity.
Therein, complainant addressed numerous incidents of alleged harassment
when her co-workers: used foul language excessively; shot rubber
bands across the workplace frequently; did not help clear her jams;
purposely banged on the SPBS machine; did not assist her when she had a
�slamming�<1>; did not help her �sweep�<2> her side; made grunt noises
when lifting heavy mail bags because complainant made grunt noises when
doing the same thing; and made race, religion, age and sex related
comments (i.e. complainant's excessive perspiration, made reference
to some pieces of mail as �grandmother's mail�, made comments about
complainant being a member of the �hole through the roof gang;�<3>
and made comments regarding �devil music�).
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
In a decision dated August 22, 2003, the AJ determined that the instant
complaint was comprised of approximately eighty-two incidents. The AJ
classified the incidents into various categories. The first category
was identified as � WORKPLACE ENVIRONMENT,� with the sub-categories
�foul language;� �rubber bands;� �clearing jams;� �hitting the SPBS;�
�slamming;� �sweeping;� �age/gender related comments.�
The other categories were identified as �Race Related Comments;�
�Religious Comments;� �Misunderstandings: Severe and Pervasive;� �Outside
Workplace;� �Retaliatory Actions;� and �Management Response.�
The AJ concluded that neither the swearing nor the rubber band incident
was directed to complainant on the bases of her sex, age, religion, or
prior EEO activity.<4> The AJ further concluded that these incidents
did not support a finding of discrimination. Regarding the clearing
jams and hitting the SPBS machine incidents, the AJ found that the
failure of complainant's co-workers to assist complainant did not rise
to the level of a hostile work environment. Regarding the slamming
and sweeping incidents, the AJ concluded that complainant failed to show
that these incidents were based upon her sex, religion, age, and prior
EEO activity, or that they were so severe or pervasive as to rise to the
level of actionable harassment. Regarding the race, religion, age and
sex related comments, the AJ found that these alleged comments made by
the co-workers did not rise to the level of a hostile work environment.
Regarding the grunting noises and �grandmother� references, the AJ found
insufficient evidence to demonstrate that these actions are so severe
and pervasive as to rise to the level of unlawful harassment. The AJ
noted in her testimony, complainant asserted that she was a grandmother,
and that the comments about being called �grandmother� were not offensive.
Regarding complainant's reprisal claim, the AJ concluded that complainant
failed to provide evidence that the comments at issue were retaliatory.
The AJ further concluded that complainant failed to support a claim of
retaliation/harassment as a consequence of the failure of her co-workers
to speak with her after filing the EEO complaint.
The AJ acknowledged that the efforts of complainant's managers to address
complainant's complaints were inadequate. The AJ nevertheless concluded
that much of the conduct that complainant deemed discriminatory simply was
neither harassing nor discriminatory. The AJ found that complainant
was particularly sensitive to matters over which her managers had
no control. For instance, the AJ found that management could not be
expected to force employees to clear co-worker's jams; stop talking
about complainant behind her back; speak to complainant on any given day;
insure that no truck is behind complainant on the highway to her house;
and require that employees can never blame complainant, through any
misunderstanding, for getting them in trouble. The AJ concluded that
despite the failure of the managers to investigate the sex, age and
religion related comments, it is unclear in the record the frequency
with which this conduct occurred in complainant's workplace.
Moreover, the AJ noted that complainant worked in a �rough and tumble�
environment, and that some of her co-workers were immature and their
conduct was boorish. The AJ concluded that complainant failed to provide
evidence that she was subjected to harassment that was sufficiently
severe or pervasive so as to alter the conditions of her employment and
create a hostile work environment. The AJ also noted that complainant
failed to provide evidence that she was retaliated against by managers
and co-workers for the filing of her EEO complaints.
On September 23, 2003, the agency issued a final order wherein it
implemented the AJ's decision finding no discrimination.
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.
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 patterned or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
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 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. Harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). 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).
The Commission determines that complainant failed to establish that she
was subjected to a hostile work environment. We find that complainant has
not shown that the actions alleged were sufficiently severe or pervasive
as to constitute hostile work environment harassment.
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 27, 2005
__________________
Date
1The record reveals that �slamming� occurs when
a large quantity of mail is directed toward one area of the SPBS machine.
2The record reveals that �sweep� occurs when mail is unbanded, the
mail backs up in the chute, does not drop in the correct bags, falls on
the floor and requires the employee to spend time picking up mail from
the floor.
3The record reveals that complainant wore a pin bearing the phrase �hole
through the roof gang,� which refers to an organization at her church
where a congregant would choose another member to focus on in prayer.
4The AJ dismissed race and color as bases because the AJ determined
that complainant did not proffer any evidence to support her claim of
discrimination on these bases.