Helen Whelan, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 10, 2009
0520090332 (E.E.O.C. Jun. 10, 2009)

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

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0520090332, 0120083960