Jerdine Y. Williams, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionApr 29, 2010
0120080630 (E.E.O.C. Apr. 29, 2010)

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

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0120080630

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120080630