0120122480
10-24-2012
Incha K. Krein, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Incha K. Krein,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120122480
Hearing No. 443-2011-00204X
Agency No. 4E-553-0009-11
DECISION
Complainant filed an appeal from the Agency's April 12, 2012 Final Order 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. For the following reasons, the Commission AFFIRMS the Agency's Final Order finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk at the Agency's University Station facility in Minneapolis, Minnesota. On April 9, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Korean), disability (neck/back/shoulder), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
Section 501 of the Rehabilitation Act of 1973 when:
A. 1. On November 10, 2010, Complainant was issued a letter of warning;
2. On December 15, and 22, 2010, and March 9, 2011, Complainant was denied breaks when working overtime;
3. On December 15, 16, 17, and 20, 2010, and January 5, 2011, Complainant was bypassed for overtime; and
4. On January 20, and April 7, 2011, Complainant was told to work beyond her medical restrictions when told to rack the delivery point sequencing (DPS).
Complainant also alleged she was discriminated against when:
B. Based on her disability, a supervisor asked her on April 7, 2011, about her medical restrictions.
C. Based on her disability, race, and national origin when she was harassed by her co-workers.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on February 27, 2012. The AJ then issued a decision on April 4, 2012.
In her Decision, the AJ found that Complainant established a prima facie case of disability discrimination and reprisal discrimination. Specifically, Complainant's supervisors, S1 and S2 were aware of Complainant's prior EEO activity, the AJ found, and they had provided statements in Complainant's prior case. The AJ also found that Complainant was limited in her ability to lift and had other physical limitations, while Complainant was able to perform the essential functions of her position with minor accommodations.
With respect to claim (A)(1), the AJ found that Complainant received a letter of warning because she was directed to report to the window operation in a timely fashion and failed to do so. The AJ found that E1, an employee to whom Complainant sought to compare herself, was not similarly situated. E1, the AJ found, did not receive any discipline even though she was assigned to the window operation because she had not been specifically directed to report to the window operation while Complainant was so instructed. The AJ found that Complainant did not establish a prima facie case of race or national origin discrimination and did not show that the Agency's reasons for its actions were unworthy of belief.
Regarding claim (A)(2), the AJ found some disagreement among the Agency officials and employees concerning when employees are allowed to take a break in connection with overtime hours. Even so, the AJ found that Complainant did not present evidence that the rules of overtime breaks were applied differently to her than to other employees performing overtime assignments. Accordingly, the AJ found Complainant did not show that discrimination on any basis occurred as alleged in this claim.
With respect to claim (A)(3), the AJ found that S2's explanation for the reasons that Complainant was bypassed for overtime on December 15, 2010, was not correct, and that S2, who schedules overtime, could not recall why Complainant was not scheduled for overtime on December 16 and 17, 2010. The AJ considered S2's explanation for failing to schedule Complainant for overtime on January 5, 2011: Complainant had requested leave for a medical appointment and was unsure what time she would return. The AJ found that Complainant demonstrated that she was indeed bypassed for overtime. However, the AJ found that none of the evidence showed that S2's decisions to offer or not offer overtime to Complainant were based upon her race, national origin, disability or prior EEO activity.
Regarding claim (A)(4), the AJ found the evidence showed that the racks of mail known as DPS mail can weigh from 5 to 25 pounds and that Complainant's 10-pound lifting restriction had been known to S1 when her restrictions were disclosed during a National Reassessment Process (NRP) discussion in December 2009. The AJ found that S1 explained that he directed Complainant to work with the trays of DPS mail since he did not, a year later, recall Complainant's specific restrictions when he instructed her to rack DPS trays when the Agency was short staffed on January 20, 2011. The AJ noted that S2 was similarly unaware of Complainant's medical restrictions when he directed Complainant to rack DPS mail in April 2011. However, the AJ found that S2 explained that on April 7, 2011, the Agency was again short staffed and as a clerk, Complainant was directed to rack the DPS mail, a clerk function. The AJ found that when Complainant objected to the work based on her medical restrictions, S2 properly inquired about her restrictions (claim (B)) and thereafter, Complainant was not forced to work in violation of her restrictions. The AJ found that Complainant did not show that she was assigned to rack the DPS mail because of her race, national origin, or prior EEO activity or that S1 or S2 knowingly assigned her to work outside of her restrictions.
The AJ found that with respect to claim (C), Complainant was the target of unwelcome comments by co-workers, E2 and E3. Specifically, at various times in 2009, and subsequently in May 2010, the AJ found that E2 and later E3, would shout "Chop chop" or "Shop shop" and sometimes "Let's go, let's go" to Complainant across the workroom floor. Complainant, the AJ found was offended by the comments and considered them derogatory. The AJ found that Complainant complained about the comments and that the Agency promptly took corrective action to stop the comments after Complainant complained. The AJ found that neither employee continued to utter the phrases after May 26, 2010, and that the Agency took appropriate steps to minimize contact between Complainant and E3. Accordingly, the AJ found that any further conflict between Complainant and E3 was not based on Complainant's race.
The AJ concluded that Complainant failed to show that she was discriminated against based on her race, national origin, disability, or in reprisal for her prior EEO activity as alleged. The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "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). The harasser's 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 at 6 (Mar. 8, 1994).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id.
In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination. Id.
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 he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing 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, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we find substantial evidence supports the AJ's Decision. Specifically, we note the absence of any connection between Complainant's race, national origin, disability and prior EEO activity and the actions described in claim (A) (1), (2), and (3). We concur with the AJ that the Agency's explanations for its actions were not shown to be incredible. We note that Complainant admitted she was directed to report to the window operation and when her request for leave was denied, she failed to follow the instructions she was given. We find no evidence that E1 was similarly instructed and no evidence that her protected bases played any role in the Agency's actions. We concur with the AJ that the Agency's policies concerning the scheduling of breaks during overtime hours as understood by employees was inconsistent, and no evidence that Complainant's protected bases motivated the denial of her breaks as alleged.
Additionally, we find the AJ properly considered the evidence that Complainant was, as alleged, bypassed for overtime on the occasions noted, or at least some of them, but that the evidence does not show that more likely than not that her race, national origin, disability, or prior EEO activity promoted the Agency officials to ignore the rotation system in place.
We further concur with the AJ that Complainant's medical restrictions were known to the Agency, and that when Complainant objected to a specific assignment (racking DPS mail) based on her restrictions, she was not ordered to violate her restrictions and the assigning official properly inquired about her restrictions when he did not recall off the top of his head what her lifting restrictions were, and that the evidence showed that the DPS mail trays could weigh less than 10 pounds so that some of the trays could be racked by Complainant without violating her lifting restrictions.
Finally, we find, as did the AJ, that when Complainant complained about the unwelcome behavior of employees uttering racially charged comments to her, the Agency took appropriate, corrective action to address the behavior and that this type of behavior ultimately stopped.
CONCLUSION
We therefore AFFIRM the Agency's Final Order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
October 24, 2012
__________________
Date
2
0120122480
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122480