0520090332
06-10-2009
Helen Whelan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Helen Whelan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090332 Appeal
No. 0120083960
Appeal No. 0120090481 - and - Hearing
No. 550-2008-00187X
Hearing No. 550-2008-00338X Agency
No. 4F-956-0170-07
Agency No. 4F-956-0080-08
DECISION
Complainant filed two separate appeals from two final agency decisions
concerning her equal employment opportunity (EEO) complaints 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In a prior decision,
the Commission found that one of complainant's appeals was untimely filed,
and the appeal was dismissed. See Helen Whelan v. United States Postal
Service, EEOC Appeal No. 0120090481 (February 26, 2009). Complainant
subsequently requested reconsideration of that decision. Because the
issues raised in complainant's two initial appeals are related, the
Commission consolidates the request for reconsideration and the remaining
appeal for joint processing in accordance with 29 C.F.R. � 1614.606.
BACKGROUND
During the relevant timeframe, complainant was employed as a Manager
of Customer Service, EAS-22, in the agency's Royal Oaks Carrier Unit in
Sacramento, California. In her complaints, complainant asserts that she
has been subjected to a hostile work environment including that her work
has been constantly criticized and closely monitored. The agency asserts
that complainant has a history of performance issues. For example,
the record establishes that around January 2007, complainant failed to
handle service, cost, and people-related issues in an effective manner,
and failed to follow directions. As a result, complainant was given a
lowered performance evaluation and placed on a Success Improvement Plan.
The agency asserts that despite numerous warnings, complainant continued
to perform deficiently.
On March 27, 2007, complainant was transferred to the Perks Postal
Facility as the Manager of Customer Service in order to place her in
a less-complex work environment. Complainant continued to display
performance deficiencies and continued to fail to follow instructions,
which resulted in an investigation of her performance issues.
Complainant asserts that she was discriminated against on August 7,
2007, when she was removed from her position as a Manager of Customer
Service and placed on administrative leave. As a result, complainant
was escorted from the building in front of other employees, which caused
her humiliation.
On August 13, 2007, complainant was placed in a developmental assignment
as a Supervisor at Fort Sutter Post Office, and she was permitted to
maintain her EAS-22 pay level. One of the essential functions of her
position was to supervise a group of employees in all of their activities.
That same day, complainant asserts, she was verbally assaulted by a Letter
Carrier. Subsequently, complainant produced medical documentation that
said she was prohibited from supervising craft employees. As a result,
complainant was informed that there was no available work for her.
Complainant was placed on leave until January 21, 2008, when the agency
placed her in a position that could accommodate her reported restriction.
On November 14, 2007, complainant filed a formal complaint of
discrimination, docketed as agency number 4F-956-0170-07 (Complaint 1).
Complainant alleged that she was subjected to a hostile work environment
and discriminated against on the bases of race (White), age (51),
disability (neck injury, depression, post traumatic stress disorder),
and in reprisal for prior protected EEO activity when:
1. On an unspecified date, her concerns were ignored and not acted upon;
2. She did not receive a response to a June 12, 2007 letter;
3. She was subjected to an investigative interview on August 3, 2007;
4. On August 7, 2007, she was removed from her job as Manager of Customer
Service at Perkins and escorted out of the building in front of other
employees;
5. On August 13, 2007, she was subjected to a verbal assault by a Letter
Carrier;
6. On August 24, 2007, she was issued a letter denying her available work;
and
7. On an unspecified date, she was treated in an unprofessional and
demeaning manner.
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. Complainant subsequently filed a motion to amend
her complaint with 179 additional claims of discrimination dating back
to 1986. The AJ denied the motion. Over complainant's objections,
the AJ issued a decision without a hearing in the agency's favor on
August 11, 2008. The AJ found that complainant failed to establish by a
preponderance of the evidence that discrimination had occurred as alleged.
On September 17, 2008, the agency issued a final order adopting the AJ's
decision in its entirety. Subsequently, complainant filed an appeal
with the Commission, which was docketed as EEOC Appeal No. 0120083960.
This appeal is discussed below.
Meanwhile, on April 17, 2008, complainant filed a second EEO complaint
docketed as agency number 4F-956-0080-08 (Complainant 2). In that
complaint, complainant alleged that she was subjected to a hostile work
environment and discriminated against on the bases of race (White), sex
(female), age (51), disability (neck injury, depression, post traumatic
stress disorder), and in reprisal for prior protected EEO activity when:
1. Since 2001, she has been subjected to harassment and a hostile
work environment with regard to her concerns being ignored; the agency
failed to provide a reasonable accommodation; she was embarrassed in
front of other employees; her work performance was criticized; her work
performance was closely monitored; she was removed from a management
position; and her medical restrictions were violated; and
2. On January 25, 2008, she did not receive a merit pay increase for
her 2007 performance and she was not given the opportunity to complete
her merit service in 2007.
Prior to an investigation, the agency dismissed claim 1 of Complaint 2
because it was identical to the claims already raised in Complaint 1.
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 AJ. Complainant timely requested
a hearing. Over the complainant's objections, the AJ assigned to
the case (the same AJ who had been assigned to Complaint 1) issued
a decision without a hearing in the agency's favor on September 25,
2008. The AJ affirmed the dismissal of the issues raised in claim
1 of Complaint 2. Further, the AJ found that the agency articulated
legitimate, nondiscriminatory reasons for not giving complainant a merit
pay increase, and complainant failed to establish that those reasons
were pretext for discrimination. Subsequently, the agency issued a final
order adopting the AJ's final decision.
Complainant filed an appeal to the Commission, which was docketed as EEOC
Appeal No. 0120090481. The Commission issued a decision on February 26,
2009, dismissing the appeal as untimely. On March 24, 2009, complainant
filed a request for reconsideration. The request for reconsideration
is discussed below.
ANALYSIS AND FINDINGS
Request for Reconsideration
As an initial matter, we note that EEOC Regulations provide that the
Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In our previous decision, Helen Whelan v. United States Postal Service,
EEOC Appeal No. 0120090481 (February 26, 2009), we found that complainant
failed to file her appeal within the applicable filing period as stated
in 29 C.F.R. � 1614.604(b). Specifically, we found that complainant
filed her appeal one day past the 30 day time-frame, and as a result, we
dismissed her appeal as untimely. In the request for reconsideration,
complainant's representative provided documentation in the form of
a fax transmittal sheet which established that complainant's appeal
was, in fact, timely filed exactly 30 days after complainant received
the final agency decision. As a result, the Commission finds that the
request for reconsideration meets the criteria of 29 C.F.R. � 1614.405(b).
The Commission therefore will address the merits of complainant's appeal
docketed as EEOC Appeal No. 0120090481, consolidated with EEOC Appeal
No. 0120083960.
Motion to Amend
The AJ denied complainant's request to amend her complaint dated November
14, 2007, to include 179 additional incidents in support of her hostile
work environment claim. We agree with the AJ's determination. Denial of
the motion was appropriate because the matters complainant raised date
back to 1986, when complainant was first hired, they arise from events
and incidents that are unlike and unrelated to the matters complained
about in the pending EEO complaint, and they involve different agency
work sites and different responsible management officials.
Summary Judgment
In both complaints, the EEOC AJ issued a decision without a hearing.
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and the agency's, factual conclusions
and legal analysis, including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
After a careful review of the record we find that the record was
adequately developed for both complaints, complainant was given notice of
the agency's motions to issue a decision without a hearing, she was given
an opportunity to respond to the motions, she was given a comprehensive
statement of undisputed facts, and she had the opportunity to engage
in discovery. Further, no genuine issue of material fact exists.
As a result, decisions without a hearing were appropriate.
Discrimination
Complainant alleged that she was discriminated against on the bases
of race (White), age (51), disability (neck injury, depression, and
post traumatic stress disorder), and in reprisal for prior protected
EEO activity. To prevail in a disparate treatment claim such as this,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Although the initial inquiry
in a discrimination case usually focuses on whether complainant has
established a prima facie case, the prima facie inquiry may be dispensed
with when the agency has articulated a legitimate, nondiscriminatory
reason for its actions. In such cases, the inquiry shifts from whether
complainant has established a prima facie case and proceeds to the
ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency's actions were motivated by discrimination. See
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983); Hernandez v. Department of Transportation, EEOC Request
No. 05900159 (June 28, 1990).
Assuming without finding that complainant established her prima facie
cases of discrimination,1 we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. For example, complainant's
performance needed improvement, and despite being given extensive
opportunities, warnings, and being placed on a Success Improvement Plan,
complainant's performance failed to improve. As a result, management was
forced to conduct a series of corrective actions, including conducting
an investigation and transferring complainant to a less-complex work
environment at the Perkins Post Office. Despite these corrective
actions, complainant's performance did not improve and, as a result,
she was removed from her management position, which required her to
be escorted out of the building. Further, complainant was not given a
merit pay increase for 2007, because complainant failed to access the
agency's web-based Management Performance Evaluation System and provide
narratives related to how she met or why she failed to meet the Core
Requirements/ Management Objectives, which is a requirement before any
merit pay increases may be awarded.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, nondiscriminatory reasons are pretext for
discrimination. The record establishes that complainant's performance
deficiencies resulted in a delay in the delivery of mail; overall mail
processing conditions were not accurately reported; and the morale of
complainant's subordinates sank so low that they threatened to picket.
Further, the record establishes that complainant failed to comply
with the requirement that she access the agency's web-based Management
Performance Evaluation System before she could be granted a merit-based
pay increase. Finally, there is nothing in the record that would
establish that discriminatory or retaliatory animus more likely than
not motivated the agency's decisions.
Harassment
Complainant alleges that she was subjected to a hostile work environment,
and included in the record a voluminous account of incidents that she
asserts constitute harassment. Harassment is actionable only if the
incidents to which complainant has been subjected were "sufficiently
severe or pervasive to alter the conditions of [complainant's] employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75 (1998); Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). To establish a prima facie
case of harassment, complainant must show that: (1) she is a member of
a statutorily protected class and/or was engaged in prior EEO activity;
(2) she was subjected to unwelcome verbal or physical conduct related
to her membership in that class and/or her prior EEO activity; (3)
the harassment complained of was based on her membership in that class
and/or her prior EEO activity; (4) the harassment had the purpose or
effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer. See
Roberts v. Department of Transportation, EEOC Appeal No. 01970727
(September 15, 2000) (citing Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982)). Further, the harasser's conduct is to 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). Here, we find that there is
nothing in the record that would establish that the agency's actions were
related to or based on complainant's membership in a protected group.
Further, we find that the alleged discriminatory acts are not severe or
pervasive enough to establish harassment. Therefore, complainant has
failed to establish that harassment occurred as alleged.
Reasonable Accommodation
Complainant asserts that she was discriminated against based on her
disabilities (neck injury, depression, post traumatic stress disorder)
when she was denied available work. After reviewing this claim in
context, it appears that complainant is asserting that the agency failed
to reasonably accommodate her in the supervisory position at the Fort
Sutter Post Office after her supervisor issued her a letter stating
that there was no available work within her restrictions. Therefore,
we will analyze this claim as an allegation of a failure to reasonably
accommodate.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of an otherwise qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship. 29
C.F.R. � 1630.9. Reasonable accommodation includes modifications to the
manner in which a position is customarily performed in order to enable
a qualified individual with a disability to perform the essential
job functions. Enforcement Guidance - Reasonable Accommodation.
The Rehabilitation Act of 1973 prohibits discrimination against
qualified disabled individuals. See 29 C.F.R. � 1630. In order
to establish that complainant was denied a reasonable accommodation,
complainant must show that: (1) she is an individual with a disability,
as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual
with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the agency
failed to provide a reasonable accommodation absent undue hardship. See
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002).
For purposes of analysis only, we assume without finding that
complainant is an individual with a disability within the meaning
of the Rehabilitation Act. Next, complainant must establish that
she is a "qualified individual with a disability," which is defined
as an individual with a disability who, with or without a reasonable
accommodation, can perform the essential functions of the position held
or desired. 29 C.F.R. � 1630.2(m).
We find that complainant failed to establish that she is a qualified
individual with a disability. Specifically, the record establishes that
an essential function of the supervisory position is to supervise the
daily activities of a group of employees. Further, the record establishes
that complainant provided medical documentation which stated that she
could not supervise craft employees. As a result, complainant could
not perform the essential functions of the supervisory position with
or without a reasonable accommodation, and therefore was not qualified
for the position. Finally, the record supports the agency's assertion
that there was not a position available in which complainant could be
accommodated until her January 2008 reassignment. Therefore, we find
that the agency did not fail to reasonably accommodate complainant.
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
finding that complainant failed to establish by a preponderance of
the evidence that she was subjected to discrimination and harassment.
Further, we find that the complainant failed to establish that the agency
failed to reasonably accommodate her.
STATEMENT OF RIGHTS - ON APPEAL2
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 (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 10, 2009
Date
1 The Commission presumes for the purposes of analysis only, and without
so finding, that complainant is an individual with a disability.
2 We note that because we have addressed the merits of the Complaint 1
(Agency No. 4F-956-0170-07) for the first time herein, complainant will
be afforded the right to request reconsideration of our decision in
Request No. 0520090332, as well as in Appeal No. 0120083960.
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0520090332
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
10
0520090332, 0120083960