0120090285
02-02-2009
Joann T. McNeill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joann T. McNeill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090285
Hearing No. 520200700170X
Agency No. 4A100015906
DECISION
On October 17, 2008, complainant filed an appeal from the agency's
September 23, 2008 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. 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 order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Sales and Service Associate (Window Clerk), PS-05, at the agency's
JAF Building in New York City, New York.
During 2006, the JAF Building facility was subjected to a "Function
4 Review." The review concluded that employees were not working
in their correct bid assignments. As a result, complainant and
other employees were instructed to report back to their original bid
assignments. Specifically, complainant was told to stop working at the
passport window and instead work at the philatelic window in accordance
with her bid assignment. Additionally, after a review of Human Resources'
records, it was determined that complainant and other employees were not
working their proper bid assignment duty hours. Specifically, complainant
was working Tuesday through Saturday, and took Sunday and Monday off
as her "rest days." On June 14, 2006, complainant was informed by her
supervisor that according to Human Resources' records, her rest days
were Saturday and Sunday, and that she must adhere to that schedule.
Complainant asserted that she had documentation refuting this bid
assignment, but she failed to produce the documentation.
On Monday, June 19, 2006, complainant ignored her supervisor's orders
and failed to report for work. As a result, her supervisor placed her
on 8 hours of absence without leave (AWOL).
Complainant has acted as an EEO representative for numerous agency
employees. On a number of occasions, complainant clocked in late for
her tour because she was handling EEO issues. Complainant's supervisor
counseled her concerning the lateness, and told complainant that she
may use official time to work on EEO issues but that she must request
time to work on EEO issues in advance. Subsequently, complainant's
requests for EEO time were occasionally adjusted by the supervisor
based on operational needs. For example, even though the exact time
complainant requested was occasionally adjusted, she was always granted
time to work on EEO issues the day she requested it.
On July 18, 2006, complainant was scheduled for one week of pre-approved
annual leave. After the annual leave was already processed, complainant
attempted to switch it to sick leave. Complainant's supervisor requested
that she provide verification of her leave balance per agency policy,
but complainant failed to do so. Complainant was originally charged with
AWOL for this time, but it was later changed to leave without pay (LWOP).
On September 28, 2006, a supervisor instructed complainant to sign for
the stamp stock and assist in changing a combination for a safe that
would hold the stamp stock. Complainant refused and subsequently was
issued a Letter of Warning for Failure to Follow Instructions.
On September 13, 2006, complainant filed a formal complaint of
discrimination alleging that she was subjected to a hostile work
environment on the basis of retaliation for prior protected EEO activity
when:
1. On June 13, 2006, she was removed from the passport window and placed
at the philatelic window;
2. On an unspecified date, her request for EEO time was delayed;
3. On an unspecified date, her supervisor questioned her days off; and
4. On June 19, 2006, she was charged with AWOL.
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 and the AJ held a hearing on August 26 and 27, 2008.
On September 18, 2008, the AJ issued a bench decision finding that
complainant failed to establish discrimination as alleged. Specifically,
the AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, and the record was devoid of evidence that
would establish that retaliation existed. On September 23, 2008, the
agency issued a final order adopting the AJ's decision. Complainant now
appeals to the Commission.
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, � VI.B. (November 9, 1999).
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).
Upon review of the record, we find that complainant failed to provide
sufficient evidence in the record to show that the cumulative incidents
she cites are sufficiently severe or pervasive to create a hostile
work environment. We also find no persuasive evidence in the record to
show that a reasonable fact finder would find that any of the alleged
harassment was motivated by unlawful animus towards complainant's
prior protected EEO activity. The agency articulated legitimate,
nondiscriminatory reasons for its actions, such as complainant was not
working in accordance with her bid assignment, she failed to report to
work when her supervisor told her to, she was granted a reasonable amount
of time to work on EEO issues, she failed to follow instructions, and
she failed to provide her leave balance as required. Complainant failed
to offer evidence that would establish that the agency's articulated
reasons were more likely than not pretext for discrimination. The AJ's
decision finding no discrimination is supported by substantial evidence
in the record.
CONCLUSION
We AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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
February 2, 2009
Date
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0120090285
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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