01A12376
09-16-2002
Joyce C. Byers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joyce C. Byers v. United States Postal Service
01A12028
9/16/02
.
Joyce C. Byers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12028 & 01A12376
Agency No. 1E-871-0012-00 & 1E-871-0012-01
DECISION
Complainant timely initiated an appeal from two final agency decisions
(FAD) concerning her complaint of unlawful 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. Her appeals are accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decisions.
The record reveals that during the relevant time, complainant was employed
as a Clerk Typist, PS-04 at the agency's Albuquerque Processing and
Distribution Center. Complainant sought EEO counseling and subsequently
filed a formal complaint on February 4, 2000, (hereafter Complaint #1)
alleging that she was discriminated against on the bases of national
origin (Native American), disability (interstitial cystitis), age (DOB:
4/13/46), and reprisal for prior EEO activity when:
(1) she was not accommodated;
she was harassed for sick leave usage;
her supervisor made demeaning and insulting comments connected to her
disability and age;
she was forced to remove a small space heater;
she was retaliated against for using family medical leave;
her schedule was changed for no good reason; and
on or about January 3, 2000, she became aware that a less senior,
less qualified candidate was detailed to an Administrative Supervisor
position.
In her second complaint dated December 12, 2000, (hereafter Complaint #2),
complainant alleged that she was subjected to discrimination because of
her age (DOB: 4/13/46), disability (interstitial cystitis), and reprisal
for prior EEO activity when on October 23, 2000, the Manager Distributions
Operations (MDO #1) spoke to her in a demeaning and intimidating manner.
In a final agency decision dated January 31, 2001, the agency dismissed
Complaint #2, finding that complainant did not suffer a specific injury
as a result of the discussion with MDO #1. Specifically, the agency
found that complainant failed to state a claim.
With respect to complaint #1, the agency accepted it for investigation.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision. In its FAD dated
January 2, 2001, the agency concluded that complainant failed to establish
a prima facie case on any of the bases cited in her complaint. Moreover,
the agency found that complainant failed to show that she was subjected
to harassment. In the alternative, the agency found that it articulated
legitimate nondiscriminatory reasons for its actions which complainant
failed to show were pretext.
On appeal, complainant contends with respect to Complaint #2 that MDO
#1 is attempting to conceal the truth about the threatening behavior he
subjected her to on October 23rd. Complainant adds that it was unfair
for MDO #1 to compare her to the General Clerks who worked for him in
the past because those General Clerks are at the PS-05 pay level while
she is at the PS-04. Level. Complainant also argues that the duties
and responsibilities of a General Clerk are different from that of a
Clerk Typist. Despite this fact, complainant states that she has been
performing tasks that are higher than those required of a level 4 Clerk.
Complainant also argues that as a result of the ongoing harassment that
she experienced while working at the Processing and Distribution Center,
her health has declined while her medical bill continues to rise.
In order to escape the abusive environment of the Processing and
Distribution Center, complainant averred that she accepted a limited
duty position at the ASF.
With respect to Complaint #2 complainant restated most of the arguments
she made earlier in the complaint process. In this regard, complainant
stated that MDO #2 abolished her job in December of 1999, because he
was not pleased with her leave usage during the prior month. Further,
complainant stated that in 1997, she expressed interest in the
Administrative Supervisor position which was recently created and MDO #2
told her that as a Level 4 Clerk, she was not qualified for the position.
Yet, complainant stated that in 1999, the agency placed a Level 4 Clerk
in such a position on Tour 3. Additionally, complainant stated that
during her tenure at the Processing and Distribution Center, MDO #2 made
belittling remarks to her such as that she did not do anything in the
office and that she had a �gravy job.� Moreover, complainant contends
that despite knowledge of her interstitial cystitis, MDO #2 refused to
provide her with a requested accommodation to modify her work area so that
she would not be exposed to the air flowing from the ventilation system.
Finally, complainant contends that the investigation of her complaint
was not thorough, fair nor accurate. The agency requests that we affirm
its FADs.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that it appears that complainant is not
an aggrieved employee with respect to Complaint #2. In this regard, the
Commission has determined that a discussion alone does not constitute
an injury which makes an employee aggrieved within the meaning of 29
C.F.R. � 1614.103(a). Here, complainant alleged that the MDO #1 spoke
to her in a demeaning and intimidating manner. Complainant does not
show that she suffered any actual injury as a result of the discussion.
It does not appear from the record that the discussion was documented in
writing or that the agency used the discussion as a basis for subsequent
disciplinary action. Therefore, the Commission finds that appellant is
not an aggrieved employee within the meaning of 29 C.F.R. � 1614.103(a)
based on the discussion described in appellant's complaint.
In Complaint #2, complainant also appears to allege harassment. The
Commission has held that in order to establish a case of harassment
that creates a hostile working environment, the harassment generally
must be ongoing and continuous. A few isolated incidents are usually
not sufficient, and the alleged conduct must be sufficiently severe
or pervasive to alter the conditions of employment. McGivern v. United
States Postal Service, EEOC Request No. 05930481 (March 17, 1994); Vargas
v. Department of Defense, EEOC Request No. 05931047 (October 7, 1993);
see also Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). To the extent that complainant alleges that the
discussion in Complaint #2 is part of a broader pattern of harassment,
the Commission will examine the validity of this claim in relation to
the other incidents of harassment raised by complainant in Complaint #1.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in Title VII cases is
a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). Complainant has
the initial burden of establishing a prima facie case of discrimination.
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. Social Security Admin., EEOC
Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas at 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. Department of Veteran Affairs,
EEOC Request No. 05960473 (November 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. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
Generally, whenever a complainant alleges that they were subjected to
discrimination because of their disability, they must establish that
they are a �qualified individual with a disability� within the meaning of
the Rehabilitation Act.<1> An �individual with disability� is a person
who has, has a record of, or is regarded as having a physical or mental
impairment which substantially limits one or more of that person's major
life activities, i.e., caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
See, 29 C.F.R. � 1630.2(j).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981). If
the agency articulates a reason for its action, the burden of production
then shifts back to complainant to establish that the agency's proffered
explanation is pretextual, and that the real reason is discrimination.
Throughout the complaint process, complainant retains the burden of proof
to establish discrimination by a preponderance of the evidence. It is
not sufficient �to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination.� St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original).
Moreover, in an ADEA case, the ultimate burden remains on complainant to
demonstrate that age was a determinative factor in the sense that, �but
for� her age, she would not have been subjected to the action at issue.
See Loeb, 600 F.2d at 1003.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
With respect to Complaint #1, the Commission finds that the agency
has articulated legitimate, nondiscriminatory reasons for its action.
Specifically, MDO #2 averred with respect to Issue #1 that despite
the absence of any medical documentation establishing that complainant
had a legitimate disability, he looked into her request to have the air
vents sealed off as a way to make her work environment more comfortable.
However, he adds that he was told by the maintenance department, that
if they were to block off the air vents, there would be no ventilation
in the reception area. After exploring this and other options, MDO #2
states that the only advice he could offer complainant was to wear warmer
clothing. In response to Issue #2, MDO #2 averred that at no time did he
take any disciplinary action against complainant for her sick leave usage.
With respect to this issue, MDO #2 also denied harassing complainant or
giving her a hard time regarding her leave usage.
Addressing Issue #3, MDO #2 denied making any demeaning or harassing
comments towards complainant. Specifically, MDO #2 denied ever calling
complainant a �stupid bitch� or a �dumb bitch.� Responding to Issue #4,
MDO #2 averred that complainant's use of the space heater raised the
office temperature to above 80 degrees and it constantly tripped the
circuit breaker which provided power to the computers. Moreover, MDO #2
averred that after a year of allowing complainant to use her space heater,
the maintenance department adamantly advised him to have it removed from
the office because it posed a safety hazard. With respect to Issues #5,
and #6, MDO #2 stated that he did not initiate complainant's schedule
change and that complainant's scheduled days off were changed to improve
operational efficiency rather than to retaliate against complainant for
using family medical leave. Confirming MDO #2's testimony on these
two issues, another supervisor who acted as MDO between November 11,
1999 and October 7, 2000 (hereafter MDO #3), indicated that based on his
observations, he decided that complainant would be more useful to the
agency on Saturday and Sunday nights rather than Friday and Saturday
nights. Accordingly, MDO #3 averred that he floated the idea of a
change of schedule to MDO #2 in the fall of 1999, and when he assumed
the acting position in November of that year, he decided to implement
the schedule change. ADO #3 added that the schedule change had nothing
to do with complainant's leave usage.
With respect to Issue #7, MDO #2 stated that in the fall of 1997, he
was given the authority to select an Administrative Supervisor, who
would be responsible for computer tasks and the processing of sensitive
information which was not available to craft employees. In light of
the assigned duties for the Administrative Supervisor position, MDO #2
stated that he selected a supervisor who had a good working knowledge
of Postal policies and regulations, extensive computer expertise, and
an excellent track record as a supervisor. MDO #2 also noted that the
comparative employee cited by complainant was selected some years later
by another supervisor on a different tour. MDO #2 indicated that he
had no input into that decision.
Based on the above discussion, we find that the agency has articulated
legitimate non-discriminatory reasons for all of the challenged actions.
We also note at this point, that to the extent that complainant is
alleging a need for accommodation, given the absence of any medical
information in the record, there is no nexus between the alleged
disability and the need for the space heater or the closing of the air
vents. Because the agency articulated a legitimate non-discriminatory
reasons for the challenged personnel action, complainant must demonstrate
that the reasons are pretextual and/or that the agency was motivated by
discriminatory animus.
In attempting to show pretext, complainant referred to the testimony of
a former Supervisor, Distribution Operation (SDO) who has since retired
from the agency. This former manager averred that he heard MDO#2 refer
to complainant as a �stupid bitch and a dumb bitch� on many occasions.
The SDO also averred that MDO #2 stated that he �wanted to have as little
to do with [complainant] as possible,� and this is the reason why MDO
#2 changed complainant's days off. Moreover, SDO averred that MDO #2
gave complainant a hard time regarding her leave usage. Responding to
this witness' testimony, the agency noted that he was hostile toward
MDO #2 and not credible. In this regard, the agency noted that MDO #2
had previously disciplined the SDO and had subsequently proposed his
removal from the agency when charges of sexual harassment against the SDO
proved to be well founded. After reviewing the evidence as a whole,
we find the testimony of MDO #2 and MDO #3 to be more credible than that
of the SDO. Consequently, the Commission finds that complainant failed
to show by a preponderance of the evidence that the reasons articulated
by the agency for his non-selection was a pretext for discrimination.
With respect to Complaint's allegation that she was subjected to
harassment which created a hostile work environment, the Commission
concurs with the agency's findings on this matter. Specifically, in prior
decisions, the Commission has held that in order to establish a case of
harassment a complainant must raise claims, that when considered together
and assumed to be true, are sufficient to state a hostile or abusive
work environment claim. See Estate of Routson v. National Aeronautics
and Space Administration, EEOC Request No. 05970388 (Feb. 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(Feb. 16, 1995).
Assuming arguendo that the allegations of harassment raised by complainant
are true, we find that they were not sufficiently severe enough to
unreasonably interfere with her work performance. Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993). In addition, none of the examples
of harassment given by complainant resulted in any tangible loss of an
employment benefit.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
9/16/02
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. We also note that
there is no medical diagnosis or prognosis of interstitial cystitis,
complainant's medical condition, as part of the record. The 26th Edition
of Stedman's Medical Dictionary, however, defines interstitial cystitis as
�a chronic inflammatory condition of unknown etiology involving the mucosa
and muscularis of the bladder, resulting in reduced bladder capacity,
pain relieved by voiding, and severe bladder irritative symptoms.�