0120091951
09-01-2009
Judi K. Brocco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judi K. Brocco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091951
Agency No. 1F-944-0012-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 16, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Laborer Custodial, PS-04, at the agency's North Bay Processing and Distribution Center in Petaluma, California.
On September 23, 2008, complainant filed the instant formal complaint. Therein, complainant claimed that she was subjected to harassment and a hostile work environment on the bases of sex (female), disability (ankle), age (over 40), and in reprisal for prior protected activity when:
1. she has been denied a reasonable accommodation in that she has not been permitted to start earlier and she is only allowed to work 1.5 hours per day;
2. on July 11, 2008, she discovered that she was not paid for July 4, 2008;
3. on July 14, 2008, she received a letter from her supervisor (S1) requesting a new CA-17;
4. on July 18, 2008, S1 was waiting for her at the time clock and followed her around all evening including to the ladies' room;
5. on July 29, 2008, S1 met her at the time clock and "shoved" a signed PS Form 3971 for Leave Without Pay (LWOP) in her face;
6. on July 30, 2008, S1 gave her a meeting/standup talk to read and sign, and he falsely wrote that she was off the day of the meeting;
7. on August 1, 2008, she was threatened with Absence Without Leave (AWOL) for reporting late on July 31, 2008;
8. on August 11, 2008, S1 blocked her access to the time clock;
9. on August 12, 2008, S1 met her at the time clock and "shoved" an overtime list and a signed PS Form 3971 for LWOP in her face, and he took notes of a conversation she was having with a co-worker;
10. on August 13 and 14, 2008, S1 waited for her to arrive and followed her;
11. on August 15, 2008, S1 issued a "nasty" letter in response to her request to use the 030 time clock, he cut her off on her way to the ladies' room and spoke to her in an abusive tone of voice;
12. on August 19, 2008, S1 harassed her about her time card that would not work at 030 and "shoved" a new one in her face;
13. on August 22, 2008, she was once again instructed to provide a medical update;
14. on August 28, 2008, she was questioned about her medical update and asked when her next doctor appointment is;
15. on October 10, 2008, she received a letter in which it was insinuated that she had been in the parking lot, and was told that if she needs to leave her work station for a lengthy amount of time, she is to call her supervisor; and
16. on October 10, 2008, she received a letter dated October 9, 2008, requesting medical documentation.1
On October 6, 2008, the agency issued a partial dismissal. The agency accepted for investigation claims 2 - 16. The agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim that is pending before or has been decided by the agency or Commission.
At the conclusion of the investigation concerning claims 2 - 16, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision on March 16, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its March 16, 2009 final decision, the agency found no discrimination concerning claims 2- 16. Specifically, the agency found that complainant did not establish a prima facie case of hostile work environment based on sex, disability, age and retaliation. The agency found assuming arguendo, that complainant established a prima facie case of hostile work environment harassment discrimination, management nevertheless articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Regarding claim 2, complainant's supervisor (S1) stated that after complainant told him that she was not paid for working on July 4, 2008, he "immediately processed a pay adjustment, expeditiously."
Regarding claim 3, S1 stated that on July 14, 2008, complainant received a letter from him requested an updated CA-17. Specifically, S1 stated "I am instructed to get medical update, when the request come in I do not demand a new CA-17, I asked her gently for a[n] update, not demand." S1 further stated "the process dealing with limited duty and light duty is virgin territory to me. I keep my superior informed of what is going on. I receive request[s] from my superiors."
The Manager, In-Plant Support (M1) stated that during the period at issue, complainant "has provided monthly updates for a non-work-related condition. The request for update was for her work-related condition, which was due to expire in August 2008." M1 further stated that in general if an employee's doctor "has indicated the date of next appointment on the CA-17, that is the date used for medical update requests. [Complainant's] CA-17 for her work-related conditions was requested based on [these] criteria, not monthly."
Regarding claims 4, 5, 9, 10 and 11, S1 denied complainant's claims that he followed her around the work place, shoved PS Form 3971 in her face, blocked her access to a rest room, cut her off on the way to the ladies room, and took notes of a conversation she had with a co-worker. S1 stated "I never shove anything into her face or anything else. I hand her, her copy of the PS Form 3971 which she submits to me weekly and she takes it from my hand. I do this in a polite and professional manner ever[y] time." S1 further stated "I never blocked [complainant's] access to a rest room, ever." Furthermore, M1 stated she has never seen S1 follow anyone around the work place.
Regarding claim 6, S1 stated that he does not know what complainant is talking about with respect to her claim that on July 30, 2008, S1 gave her a meeting/standup talk to read and sign, and he falsely wrote that she was off the day of the meeting.
Regarding claim 7, S1 denied threatening complainant with AWOL for reporting late to work on July 31, 2008. S1 further stated that complainant was put in AWOL "because she did not have any annual leave to use, this was told her."
Regarding claim 8, S1 denied complainant's claim that on August 11, 2008, he blocked her access to the time clock. Specifically, S1 stated "I never blocked her access to a time clock. I never block her ever."
Regarding claim 12, S1 denied complainant's claim that on August 19, 2008, he harassed her about her time card that would not work at 030 and "shoved" a new one in her face. S1 stated that complainant was making "un untrue statement. I never harassed her about her time card nor did I shove it or anything else into her face."
With respect to complainant's claim that her request to use time clock at 030 was denied, S1 stated that it was not true. S1 stated that he received complainant's request to use time clock at 030 and "told her it was ok to use 030 operation time clock, letter include August 18, 2008."
M1 stated that complainant's claim was not true. M1 further stated "each time clock is assigned to specific pay locations. As a maintenance employee, [complainant] was not assigned to the Opn 030 timeclock EBR #045-0109. [Complainant] submitted a written request to be allowed to use this timeclock on Saturday, August 15, 2008. She began using EBR #045-0109 on August 19, 2008."
Regarding claim 13, S1 stated that he does not recall the August 22, 2008 incident when complainant was once again instructed to provide a medical update. S1 further stated "I do know that because of [complainant's] awful treatment towards [me], trashing my name, that I do let [complainant] know who is requesting the information. I always am professional and respectful towards her and others."
M1 stated that medical updates "are requested, not demanded. A new medical would have been requested either if the old one had expired or was soon to expire."
Regarding claim 14, S1 stated "I stay away from [Complainant] unless I have to perform some official function with her, which I conduct in a professional demeanor."
M1 stated in regard to complainant's claim that on August 28, 2008, S1 followed her out to the parking lot and said [M1] wants to know when her next doctor appointment was, M1 stated "I was not aware of this incident, however, as stated above, the date of next appointment is generally used to determine the need for medical updates."
Regarding claim 15, S1 stated that on October 9, 2008, he sent complainant a letter because he could not get the information from her "that my superiors asked me for, because she was not in her assigned area of work. When I did see her it was just a few moments before she had to go home, she said something about going to the restroom, there is no restroom through the double admin doors, only the parking lot, and different admin offices."
M1 stated that complainant was given a letter because "medical updates are requested based on the date of next appointment as provided by the treating physician." M1 further stated "I am responsible for tracking medical updates for all limited and light duty employees to ensure that they are submitted timely and that the work assigned to the employees matches their restrictions."
Regarding claim 16, S1 stated "I am given request to get medical updates all the time, on October 9 I was task with getting a medical update, because she was not in her assigned work area I had to acquire this on October 10, 2008."
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. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment.
We note that complainant, on appeal, did not address the issues in her complaint or respond to the agency's explanations and, instead, raised new matters following the events herein. The Commission has held that it is not appropriate for complainants to raise new claims for the first time on appeal. See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449 (April 22, 2004). Complainant is advised to contact an EEO Counselor to begin the administrative process, should she wish to proceed with these claims.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2
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
September 1, 2009
__________________
Date
1 The record reflects that claims 15 - 16 were later amended to the instant complaint.
2 On appeal, complainant does not challenge an agency October 6, 2008 partial dismissal regarding claim 1. Therefore, we have not addressed this issue in our decision.
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0120091951
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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