0120080630
04-29-2010
Jerdine Y. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Jerdine Y. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120080630
Hearing No. 510-2007-00388X
Agency No. 4H-335-0049-07
DECISION
On November 17, 2007, complainant filed an appeal from the agency's
October 26, 2007 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.
BACKGROUND
At the time of events relevant to this complaint, complainant worked as
a Rural Carrier Associate at the agency's Valrico, Florida Post Office.
On March 13, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (Black), sex (female),
disability (right foot arch), and in reprisal for prior protected EEO
activity under Title VII when:
1. On January 24, 2007, management violated her medical restrictions by
calling her doctor and telling her to return to full duty, and;
2. On February 23, 2007, she was subjected to a hostile work environment
and subsequently was placed in a non-pay status beyond 14 days
(constructive suspension).
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 but subsequently withdrew her request. Consequently,
the agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). Initially,
the FAD assumed that complainant had established a prima facie case of
discrimination and harassment on the alleged bases. Next, the FAD found
that the agency had articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, as to claim (1), complainant's supervisor
(S1) claimed that she could not read the information contained in a Duty
Status Report (CA-17) complainant had given her. S1 called complainant's
doctor to get further information, but never asked that complainant be
returned to full duty. As to claim (2), S1 stated that complainant was
not placed in non-pay status; rather, she simply stopped reporting to work
after January 25, 2007. Further, the Injury Compensation Specialist (ICS)
added that complainant was released to return to work with restrictions on
February 21, 2007 and the agency offered her a limited-duty assignment,
which she rejected. The FAD then found that complainant failed to show
that the agency's reasons were pretextual and as a result, the FAD held
that complainant not been subjected to discrimination, retaliation, or
harassment as alleged. Complainant presented no arguments on appeal.
The agency requests that we affirm the FAD.
ANALYSIS AND FINDINGS
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").
Disparate Treatment
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby a complainant must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, the burden reverts back to complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
For purposes of analysis, we will assume arguendo that complainant
is an individual with a disability and has established a prima facie
case of discrimination on the alleged bases. We further find that the
agency has articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, as to claim (1), S1 asserts that she only called
complainant's doctor because she could not read what was written on her
CA-17 form. Report of Investigation (ROI), S1's Aff. at 3. S1 also
denies telling the doctor to return complainant to full duty; rather,
complainant's doctor told S1 that complainant could return to full duty.
Id. The Officer-in-Charge (OIC) affirms that he only advised S1 to call
the doctor's office to ask them to provide a legible copy of the CA-17.
ROI, OIC's Aff. at 3. OIC states that after S1 faxed over the request
for a more legible CA-17, the doctor's office faxed the agency an amended
CA-17 which stated complainant could return to full duty. Id.
As to claim (2), S1 avers that she did not place complainant in non-paid
status; rather, complainant simply stopped coming to work after January
25, 2007. ROI, S1's Aff. at 8. ICS asserts that on January 27, 2007,
complainant went to the hospital for personal reasons and on February
12, 2007, filed a claim stating that she had re-injured her foot.
ROI, ICS's Aff. at 4. ICS claims that complainant went to the doctor
again on February 7, 2007, and her doctor gave her a note indicating
that she could return to work on limited-duty with a restriction of no
prolonged standing. Id. S1 and ICS both assert that complainant was
offered a limited-duty assignment and complainant rejected it. ROI,
S1's Aff. at 8; ROI, ICS's Aff. at 4. Complainant does not contest that
she was offered a limited-duty assignment. ROI, Comp.'s Aff. at 14.
ICS adds that on March 16, 2007, complainant was released to full duty
however, she did not return to work. ROI, ICS's Aff. at 4.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this by
showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). We find
that aside from complainant's bare assertions, the record is devoid of
any persuasive evidence that discrimination was a factor in any of the
agency's actions. At all times the ultimate burden of persuasion remains
with complainant to demonstrate by a preponderance of the evidence that
the agency's reasons were not the real reasons, and that the agency
acted on the basis of discriminatory animus. Complainant failed to
carry this burden.
Hostile Work Environment
It is well-settled that harassment of an employee that would not occur but
for the employee's race, color, sex, national origin, age, disability,
or religion is unlawful, if it is sufficiently severe or pervasive.
Hurston v. United States Postal Service, Appeal No. 01986458 (January
19, 2001), (citing Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (August 14, 1998)). To establish a prima facie case of
hostile work environment discrimination, 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 because
of her/his protected class; (3) the harassment complained of was based
on her/his 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. See 29 C.F.R. �
1604.11; Davis v. Army, EEOC Appeal Nos. 01A24469, 01A20558 (November 14,
2003).
Complainant must show that the actions complained of were taken because
of or based on her protected status and are sufficiently patterned
or pervasive; usually, a single incident or a group of isolated,
discrete incidents will not be regarded as discriminatory harassment.
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
A hostile work environment exists "when the workplace is permeated with
discriminatory intimidation, ridicule and insult that is sufficiently
severe or pervasive to alter the condition of the victim's employment."
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). An alteration
to an employee's working conditions exists if a tangible, discrete
employment action is taken, e.g., hiring, firing, transfer, promotion,
non-selection, or the agency's actions were sufficiently severe and/or
pervasive to create a hostile work environment.
We note that complainant alleges that she was subjected to a hostile work
environment only on the basis of reprisal for her prior protected EEO
activity. See ROI, Comp.'s Aff. at 22. In addition to her constructive
suspension claim discussed above, complainant contends that on February
23, 2007, the agency accused her of writing on her CA-17. ROI, Comp.'s
Aff. at 19. Complainant denies writing on the CA-17 and asserts that the
agency sent a Postal Inspector to her doctor's office with the intent to
fire her based on a false allegation. Id. S1 denies accusing complainant
of writing on the CA-17. ROI, S1's Aff. at 6. S1 asserts that she
informed complainant that the nurse at her doctor's office told her she
thought complainant had written on the form because it was not the nurse's
or the doctor's handwriting. S1 claims that she has no knowledge as to
whether a management official sent a Postal Inspector to complainant's
doctor's office or whether an investigation was conducted. Id.
We conclude that complainant did not prove that she was subjected
to conduct sufficiently severe or pervasive to create a hostile work
environment and that she also failed to prove that the agency's actions
were unlawfully motivated by her prior protected activity or any other
basis. Even if we assume that the alleged actions would be sufficiently
severe or pervasive to constitute a hostile work environment, there is
insufficient evidence that any of them were motivated by discriminatory
animus. Accordingly, complainant has not shown that she was subjected
to a hostile work environment on any of the alleged bases.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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 (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
April 29, 2010______________
Date
2
0120080630
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080630