0120083459
01-16-2009
Maggie Matos, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maggie Matos,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083459
Hearing No. 440-2008-00063X
Agency No. 4J-606-0095-07
DECISION
On August 1, 2008, complainant filed an appeal from the agency's July 8,
2008 final decision 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).
During the relevant period, complainant was employed as a Sales/Service
Associate at an Illinois facility of the agency. In a formal EEO
complaint dated July 13, 2007, complainant alleged that the agency
subject her to a hostile work environment on the bases of national origin
(Latina/Puerto Rican), sex (female), and disability (by association
with son who has Down's Syndrome) when her immediate supervisor (S1)
(1) in Summer 2005, sent complainant home to change her clothes, (2)
on July 3, 2007 and other occasions, required complainant to change her
son's medical appointments, (3) harassed complainant if she was as little
as five minutes late, (4) posted her suspension on a bulletin board for
public display, and (5) on April 9, 2007, issued her a Letter of Removal
for leaving her stamp stock out on January 29, 20071. Complainant alleged
that S1 treated others more favorably; and that S1 sexually harassed her
by the action alleged in (1) and, in December 2006, stating "we should
go out." She explained that S1 did not persist with his invitation
to go out, but that S1 began treating her worse after she declined his
invitation.
During the agency investigation, S1 stated (1) another supervisor
(S2) sent complainant home because she was not in proper uniform; (2)
employees are asked to schedule medical appointments either early in the
morning, for only a small portion of a scheduled day, or, preferably,
on nonscheduled days to allow for appropriate customer service at the
retail window, and complainant was granted Friday as one of two weekly
nonscheduled days so that she could schedule medical appointments for
her son on that day; (3) management's policy was to interview employees
regarding schedule deviations and he questioned complainant about leaving
before the end of her tour, (4) management makes notations on the posted
schedule so that other supervisors are aware of the whereabouts of each
employee; (5) complainant was given a Letter of Removal as progressive
discipline. S1 added that labor relations and management accommodated
complainant with a set schedule and her leave was denied only based
on the needs of the agency. Further, S1 stated that he did not ask
complainant to go out and did not sexually harass her.
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 requested
a hearing, but the AJ dismissed her request for "failure to cooperate,
failure to prosecute, and a failure to follow the orders of the [AJ]."
The AJ remanded the complaint to the agency to issue a final decision
pursuant to 29 C.F.R. � 1614.110(b). In its final decision, the
agency found that complainant failed to prove that she was subjected
to discrimination as alleged. Specifically, the agency concluded
that complainant failed to allege actions that rose to the level of a
hostile work environment or that were based on discriminatory factors.
The agency noted that it included additional incidents regarding a
denial of leave on August 1 and 2, 2007 and overtime in the finding of
no discriminatory harassment.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be
regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all 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 (1993).
To establish a prima facie case of hostile environment harassment,
a complainant must show that: (1) s/he is a member of a statutorily
protected class; (2) s/he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work
environment. Humphrey v. U. S. Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. �1604.11. The harasser's 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 complainant failed to show that the
alleged agency actions were based on discriminatory motives. Accordingly,
we AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
January 16, 2009
__________________
Date
1 We note that, under a negotiated grievance procedure, the Letter of
Removal was reduced to a fourteen day suspension served off-the-clock
effective June 2, 2007.
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0120083459
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120083459