0120071237
06-26-2007
Kenza L. Starling, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenza L. Starling,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071237
Hearing No. 170-2005-00058X
Agency No. 1C-081-0042-04
DECISION
On January 5, 2007, complainant filed an appeal from the agency's December
6, 2007, 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., 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 order.
During the relevant time, complainant worked as a PS-5 Modified Mail
Processor in the South Jersey Processing and Distribution Center in
Bellmawr, New Jersey. On April 18, 2005, complainant filed an EEO
complaint alleging that she was discriminated against on the bases
of race (African-American), sex (female), disability (not specified)
and reprisal for prior protected EEO activity when: she was allegedly
continuously harassed and treated in a disparate manner from approximately
May 2004 through April 2005; and the agency allegedly failed to reasonably
accommodate her beginning on or about January 2005.1 For example, on
May 29, 2004, she discovered that she was charged Absent Without Leave
(AWOL) from May 22 through May 27, 2004 while she was on vacation.
On June 2, 2004, she was paged by management while she was on a break,
questioned about her time card and placed in AWOL status from 9:55
PM to 11:10 PM. On July 1, 2004, she was asked to update her medical
restrictions, although not everyone was requested to provide an update.
On September 24, 2004, after returning to her work area, she discovered
that the supervisor had removed her chair from her work station and
given it to another employee, and then required that she provide medical
documentation for the chair. On January 18, 2005, management told her
that her CA-17 (Duty Status Report) was not acceptable. On January 23,
2005, after reporting for work at a new start time, in accordance with
a December 23, 2004 notice that she signed and accepted on October 28,
2004, management advised her that the new start time did not apply to her.
On March 17, 2005, management notified her by certified mail that she
was to meet with them on March 23, 2005, and also advised her that she
was in an AWOL status. On April 6, 2005, after returning to duty, she
was again removed from the building and placed in a LWOP (Leave Without
Pay) status.
At the conclusion of the agency's 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 three day hearing
between October 11 through 18, 2006. The AJ issued a thorough decision
on November 27, 2006, finding no discrimination.
The AJ found that complainant failed to establish a prima facie case of
race, sex, or reprisal discrimination based on a hostile work environment
theory because she failed to show that the agency's actions were due her
membership in those protected groups. The AJ determined that personality
conflicts between complainant and management appeared to contribute to
the environment. She further noted that, with respect to complainant's
reprisal claim, the alleged harassing behavior pre-dated complainant's
appointment as a shop steward, a capacity in which she participated
in EEO activity. As to complainant's disability claim, the AJ found
that complainant failed to establish that she had an impairment which
substantially limits a major life activity. She then assumed arguendo
that complainant established that she was an individual with a disability,
and she found that the agency made a good faith effort to accommodate
complainant when she provided the necessary medical documentation,
and that the agency made an appropriate job offer once it received
the aforesaid documentation. She also found that the agency did
not intentionally discriminate against complainant on the basis of
disability.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged, and complainant filed the subject appeal. She provided a
detailed account of each incident of alleged hostile work environment, as
well as the events surrounding her request for reasonable accommodation.
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.
The Commission finds that the AJ's decision summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We discern no basis to disturb the AJ's decision finding no discrimination
on the basis of race, sex, reprisal, and/or disability. With respect to
complainant's claim of hostile work environment, there is no indication
that a discriminatory animus based on race or sex or in reprisal was the
motivation behind the agency's actions. We note in this regard that the
record revealed a uniquely strained relationship between complainant
and management, but nothing that indicated discriminatory animus.
McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 987, 903
(11th Cir. 1982). With respect to complainant's claim of disability
discrimination,2 the record also reveals that the agency requested
appropriate medical documentation, and any delays in providing an
accommodation thereafter were caused by complainant's failure to
provide that documentation. EEOC's Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, Notice No. 915.002 (revised October 17, 2002), at Question 6.
Moreover, once complainant comported with the agency's request, the agency
provided her with a job offer within her restrictions. Accordingly,
the Commission concludes that complainant has failed to prove that she
was subjected to a hostile work environment on the basis of race, sex,
reprisal, and/or disability, or that the agency failed to reasonably
accommodate her in a timely manner.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final order.
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
___06/26/07_______________
Date
1 Although the agency and the AJ subsumed the claim of failure to
reasonably accommodate in the claim of hostile work environment, the AJ
clearly analyzed whether the agency failed to reasonably accommodate
complainant in her decision. Therefore, we will analyze that issue
herein.
2 We assume without finding, for the purposes of analysis only, that
complainant is an individual with a disability as alleged.
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0120071237
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071237