01A62644
08-14-2006
Lelia Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lelia Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A62644
Agency No. 1H-372-0007-05
DECISION
Complainant appeals to the Commission from the agency's February 21, 2006
decision finding no discrimination. According to the agency's decision,
complainant alleges discrimination on the bases of sex (female) and
reprisal for prior protected EEO activity when:
1. On May 15, 2005, complainant was sexually harassed by a member of
management.[1]
2. On August 17, 2005, complainant was terminated for failure to pass
the testing requirements of her position.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for its actions. Regarding claim 1, the agency asserted that
complainant was on a first name basis with Manager A, had socialized with
him after work and engaged in personal telephone conversations with him,
which according to his unrebutted testimony included some touching and talk
of sex. Furthermore, the agency claimed that they took immediate
corrective action as soon as it was put on notice. The agency asserted
that complainant's employer immediately separated complainant from the
offender and complainant never worked under Manager A's supervision again.
The agency stated that it conducted two investigations, one administrative
and one by the Inspector Service in response to complainant's criminal
charge. The agency reported that these investigations resulted in a
suspension to the offender and his placement back into his mail handler
position. Moreover, the agency articulated that complainant's employment
status did not change. Specifically, the agency said that complainant was
not suspended, reassigned, or terminated. The agency said that complainant
finished her casual (temporary) employment on Tour 3. The agency claimed
that there was no significant difference in complainant's responsibilities
or significant changes in her benefits. The agency asserted that it
exercised reasonable care to prevent and correct promptly any harassing
behavior. The agency stated that, when complainant was dissatisfied with
these steps, complainant had additional protection of the Inspection
Service to avoid harm.
As to claim 2, the agency stated that complainant was terminated for
failure to pass the required training for her position. The agency
reported that complainant was required to pass the flat sorter keying test,
which required complainant to key 45 items per minute with a 98 percent
accuracy rate. The agency said that the qualifications for the position
were a requirement for complainant's position. The agency claimed that all
employees hired for the position of Flat Sorter were required to pass the
same training that complainant was required to pass. The agency asserted
that the training is given to all employees at the beginning of their
appointment; and that, if they fail to pass this training, their employment
is terminated. The agency stated that all employees, like complainant, who
were hired as a Temporary Employee (TE) were required to pass the keying
requirements.
Complainant has failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for its actions. Furthermore, complainant has
failed to show, by a preponderance of the evidence, that complainant was
discriminated on the bases of sex or reprisal or that complainant was
subjected to discriminatory sexual harassment.
The agency's decision finding no discrimination is AFFIRMED.
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
August 14, 2006
__________________
Date
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[1] The acceptance letter indicated May 15, 2005. The formal complaint
stated, "On May 26, 2005, [Manager A] (204b), sexually assaulted me.
Specifically, [Manager A] squeezed my buttocks."