Gwendolyn Grant, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 29, 2007
0120061507 (E.E.O.C. Aug. 29, 2007)

0120061507

08-29-2007

Gwendolyn Grant, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Gwendolyn Grant,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200615071

Agency No. 4F-940-0045-05

Hearing No. 370-2005-00499X

DECISION

Complainant filed an appeal with this Commission from the December 8,

2005 agency decision finding no discrimination.2

Complainant alleged that the agency discriminated against her on the

bases of race (Black), sex (female), and reprisal for prior protected EEO

activity under Title VII of the Civil Rights Act of 1964 when continuing

from December 14, 2004, she was subjected to threats, verbal abuse, and

assaults from a male coworker and management failed to take any action.

Complainant also alleged that she was denied safety, denied wages,

and forced from work.

In its decision finding no discrimination, the agency found that

complainant had failed to establish a prima facie case of reprisal,

noting that the management officials were not aware of the prior EEO

activity and that the prior EEO activity was remote in time to the

alleged discrimination which is the subject of her complaint. Regarding

harassment, the agency stated that complainant had not shown that the

alleged actions of Co-Worker A were sufficiently severe or pervasive

so as to give rise to a hostile work environment. The agency also

concluded that even assuming that complainant had established a prima

facie case of discrimination, management had articulated legitimate,

nondiscriminatory reasons for its actions and as an affirmative defense

to any harassment, the agency had exercised reasonable care to prevent

and promptly correct any harassment by taking immediate and appropriate

corrective action. The agency noted that after the incident that occurred

in Supervisor A's office, Co-Worker A was transferred temporarily to

another unit. The agency also noted that police ruled that any contact

was incidental and that other employees who were questioned during the

course of the agency investigation stated that they had not witnessed any

threats, verbal abuse or assaults by Co-Worker A towards complainant.

The agency also noted that Supervisor A had contacted the Police and

Postal Inspection Service and concluded that no harassment had occurred

and that complainant's working environment was not unsafe.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. The Court explained that an "objectively hostile or abusive

work environment [is created when] a reasonable person would find [it]

hostile or abusive:" and the complainant subjectively perceives it as

such. Harris, supra at 21-22. Thus, not all claims of harassment are

actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

a claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe or

pervasive to alter the conditions of the complainant's employment.

To establish a prima facie case of harassment, a complainant must show

that: (1) s/he belongs to a statutorily protected class; (2) s/he was

subjected to harassment in the form of unwelcome verbal or physical

conduct involving the protected class; (3) the harassment complained of

was based on the statutorily protected class; and (4) the harassment

affected a term or condition of employment and/or had the purpose or

effect of unreasonably interfering with the work environment and/or

creating an intimidating, hostile, or offensive work environment and (5)

some basis exists to impute liability to the employer, i.e., supervisory

employees knew or should have known of the conduct but failed to take

corrective action.

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in

accordance with the burdens set forth in McDonnell Douglas, complainant

may establish a prima facie case of reprisal by showing that: (1)

complainant engaged in a protected activity; (2) the agency was aware

of the protected activity; (3) subsequently, complainant was subjected

to adverse treatment by the agency; and (4) a nexus exists between the

protected activity and the adverse treatment. Whitmire v. Department

of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).

In her affidavit, complainant stated that on December 14, 2004, when

she arrived for work at about 6:00 a.m., she saw Co-Worker A's car

and she called the San Francisco police to escort her to work which

the police did. Complainant further stated that around 11:15 a.m.,

Supervisor A called her into his office and that she left his office when

Supervisor A's telephone rang. When she returned to the office, Co-Worker

A pushed complainant with the door and also pushed her with his shoulder.

Complainant further stated that she called for help from Supervisor A

and Supervisor A ordered Co-Worker A out of the office. She stated that

Co-Worker A was sent to another facility until December 29, 2004.

Complainant stated that she sought medical attention on December 14,

2004, and was unable to work the following day. Complainant also stated

in her affidavit that she was unable to cope when Co-Worker A returned

to work and that no further efforts were made by the agency to provide

her with work until March 15, 2005, and that she received no pay during

the time she was away from work.

The record contains the affidavit of Supervisor A and a statement that

he submitted as part of an investigation of complainant's claim of

harassment. These records reflect that Supervisor A called complainant

into his office on December 14, 2004, to inquire about her calling

the police. He also stated that when Co-Worker A tried to enter the

office at the same time as complainant, complainant tried to block

the door and there was contact between complainant and Co-Worker A.

The records also reflect that complainant called the police and the

police determined that the contact was an incidental contact between

complainant and Co-worker A. Supervisor A also stated that Co-Worker A

was reassigned to another facility from December 15, 2004 to December 28,

2004, for a cooling off period.

The record contains complainant's PS Form 3972 Absence Analysis for

Leave Years 2004 and 2005. The form reflects that complainant was on

annual leave for December 15, 24, 28, and 31, 2004, and that she was on

a combination of annual leave and leave without pay from December 31,

2004 through March 15, 2005.

The record reveals that complainant engaged in prior EEO activity in

1993 and 2000.

Upon review, the Commission finds that the agency's finding of no

discrimination was appropriate. Complainant has failed to establish a

prima facie case of discrimination. Regarding harassment, the Commission

notes that other than the incident which occurred in December 2004,

complainant has not identified any other incident of alleged harassment

between her and Co-Worker A. The record also reveals that the agency

promptly investigated complainant's claim of harassment. Complainant

also has not shown that she was denied safety at work or that the agency

forced her from work or denied her wages. Furthermore, complainant has

not established any causal nexus between her protected bases and the

alleged adverse treatment or that any similarly situated persons were

treated differently than she was under similar circumstances.

Even assuming that complainant established a prima facie case, she has

not shown that she was subjected to unlawful discrimination or reprisal.

Mere allegations without proof cannot sustain a finding of discrimination.

The Commission cannot find that complainant was subjected to a hostile

work environment for discriminatory reasons or that any alleged actions

of the agency were motivated by discriminatory animus. Accordingly, it is

the conclusion of this Commission that complainant has failed to show by a

preponderance of the evidence that any unlawful discrimination occurred.

The agency's decision finding 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

August 29, 2007

__________________

Date

1 Due to a new data system, this appeal has been re-designated with the

above-referenced appeal number.

2 The Commission notes that the EEOC Administrative Judge (AJ) remanded

this matter to the agency for a decision after complainant failed to

respond to the AJ's Notice of Intent to Consider

Issuance of a Decision without a Hearing and Order, dated October 3,

2005, which informed the parties that the AJ was considering resolving

the case without hearing and which also informed complainant that her

failure to respond to the Notice would be construed by the AJ as a

request to withdraw complainant's hearing request. Complainant failed

to respond to the AJ's Notice and the AJ remanded the matter. On appeal,

complainant has not challenged this action by the AJ.

??

??

??

??

5

0120061507

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036