0120083441
11-06-2008
Heather H. Bell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Heather H. Bell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 0120083441
Agency No. 1K-276-0026-07
DECISION
On July 31, 2008, complainant filed an appeal from the agency's July 1,
2008, final decision 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 deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant
worked as a Mail Processor, PS-05, at the Raleigh, Durham Processing
and Distribution Center. On August 6, 2007, complainant filed an
EEO complaint (which she subsequently amended), alleging that she was
discriminated against on the basis of disability1 when:
1. on April 28, 2007, her request for weekends off to caring for an
ailing in-law, was denied.
Complainant also alleged that she was discriminated against on the bases
of disability and in reprisal for prior protected activity when:
2. on August 10, 2007, her pay stub reflected two (2) weeks at level 5
pay instead of an expeditor's level 6 pay.
Complainant also alleged that she was discriminated against on the bases
of race (Caucasian) and sex (female) when:
3. on September 28, 2007, she was subjected to a hostile work environment
when a co-worker yelled inappropriate language 6 inches from her face
and management failed to investigate the incident properly. 2
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). Although complainant
initially requested a hearing, on June 2, 2008, the Administrative
Judge assigned to the case remanded the complaint to the agency for
the issuance of a final agency decision, due to complainant's failure
to prosecute the case as ordered by the AJ. The agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant
failed to prove that she was subjected to discrimination as alleged.
The FAD first noted that the complaint originally included one additional
claim. However, on August 27, 2007, this matter was dismissed for failure
to state a claim, and being untimely filed. The FAD found that this
claim was properly dismissed in accordance with 29 C.F.R. � 1614.107.
As for the claim concerning complainant's request for weekends off to
care for an ailing in-law, the FAD found that complainant did not timely
bring this matter to the attention of an EEO Counselor. The FAD also
found that complainant was not "aggrieved" as to this issue. The FAD
nevertheless indicated that it would address this issue on the merits.
Additionally, the FAD found that claim (2) was rendered moot because the
adverse treatment was remedied when complainant received her level 6 pay.
However, the agency nevertheless indicated that it would address this
issue on the merits.
The FAD next found the following: complainant failed to establish
a prima facie case of discrimination based on disability, as she
failed to meet the threshold requirement that she has a disability as
defined by the Rehabilitation Act. Assuming that complainant had met
the threshold requirement that she had a disability, and that she was
"otherwise qualified" as of the date at issue in the instant complaint,
the agency found that the accommodation that complainant requested is not
one that would in any way enable her to perform the essential functions
of her position, and is, in fact, not related to the performance of her
duties at all. In addition, the agency found that changing complainant's
non-scheduled days to weekends would "offend the contract rights of others
under the applicable collective bargaining agreement," as non-scheduled
days are part of a bid assignment, and employees senior to complainant,
who may also not have weekends off, would not have had the opportunity
to bid on that assignment.
As to the basis of reprisal, the FAD found that although complainant
had engaged in prior EEO activity, she did not show that the responsible
management officials were aware of such activity, and therefore, she did
not establish a prima facie case of discrimination based on reprisal.
The FAD addressed issues (1) and (2) under a disparate treatment analysis,
and found that complainant did not show that a similarly-situated
co-worker, not in her protected groups, was treated more favorably
under similar circumstances. The FAD found that assuming arguendo that
complainant could establish a prima facie case on the alleged bases,
the agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, as to complainant's request for weekends
off, the Manager (M1) stated that this request had no relevance to her
medical restrictions. M1 stated that complainant was told they would
make every effort to revise the schedule when she needed weekends off.
Additionally, as to issue (2) the initial failure to pay complainant
correctly was due to a timekeeping error, and this was corrected and
complainant was paid properly. The FAD found that complainant did not
demonstrate the agency's reasons to be pretextual. Addressing incident
(3) under a harassment analysis, the FAD found that complainant has
failed to establish that the isolated incident she described rose to
the level of discriminatory harassment.
On appeal, complainant raises no new arguments.3 The agency requests that
we affirm the FAD. As 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).
See EEOC Management Directive 110, Chapter 9, � VI.A. (November 9,
1999). (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
Reasonable Accommodation (Issue 1)
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)
and (p). Here, we agree with the agency's conclusion that complainant
did not require reasonable accommodation in order to perform the duties
of her position. Accordingly, even assuming she was disabled at the
relevant time, the agency was not obligated under the Rehabilitation Act,
to provide her with the accommodation which she sought.
Disparate Treatment (Issues 1 and 2)
The allocation of burdens and order of presentation of proof in a Title
VII or Rehabilitation Act case alleging disparate treatment discrimination
is a three step procedure: complainant has the initial burden of proving,
by a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, based on this record, complainant has not established that the
agency's stated reasons for its actions are more likely than not, pretext
for discriminatory or retaliatory animus. In so finding, we note that
we do not have the benefit of an AJ's findings after a hearing and
therefore, we can only evaluate the facts based on the weight of the
evidence presented to us.
Harassment
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). Even assuming that complainant intended to include all three
issues in her harassment claim, we find that the alleged conduct is not
sufficiently severe or pervasive to be considered unlawful.
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
November 6, 2008
__________________
Date
1 Complainant states that she was diagnosed with Complex Regional Pain
Syndrome in 2003-2004, which includes sprains and strains of shoulder
and lateral epicondylitis.
2 Complainant contends that the co-worker slammed down his scanner
and said, "I don't know who the f--k you think you are? You go to your
supervisor, you don't come out here on the south dock. I'm assigned to
the south dock."
3 As complainant does not, on appeal, specifically challenge the AJ's
decision to remand the case to the agency for issuance of a FAD, we will
not address this matter herein.
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0120083441
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036