01A20982
03-24-2003
Marcella E. Gorski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Marcella E. Gorski v. United States Postal Service
01A20982
March 24, 2003
.
Marcella E. Gorski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A20982
Agency Nos. 4-I-530-0044-98; 4-I-530-0048-99
Hearing Nos. 260-AI-9099X; 260-AI-9100X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that, during the relevant period, complainant was
employed as a Part-time Regular Clerk at the agency's Westside Station
facility in Madison, Wisconsin. The record reflects that complainant
suffers from profound hearing loss. The record also reflects that
complainant requested, and was denied, training in October and November
1997. Additionally, complainant contends that despite repeated requests,
management failed to fix a door bell which lights up in order to signify
that customers are waiting to be served.
Complainant also contends that in 1998 she reported to management
officials that she was offended by certain pornographic materials being
displayed in the workplace. According to complainant, the day after
she reported the pornography, a three foot tall �balloon man� made out
of postal materials, was placed at her work station. A sign that read
�I have special needs� was placed on the face of the �balloon man.�
Complainant notified her supervisor, who allegedly laughed and walked
away. The record reflects that another management official removed the
�balloon man.�
The record also reveals that, in response to her complaints to management
regarding the conduct of her co-workers and supervisors, an acting
supervisor posted a sign. Complainant believes that the sign, which read
�Don't Complain, Don't Criticize and Don't Condemn,� was directed at her.
Complainant further contends that her acting supervisor told her that,
�he has [her] number,� and to speed up her work.
Complainant filed formal EEO complaints on April 4, 1998, and July 11,
1999, alleging that the agency had discriminated against her by subjecting
her to a hostile working environment on the bases of sex (female),
disability (hearing impaired), and reprisal for prior EEO activity when:
(1) after reporting to management about the being offended by
pornographic material in the work place, on January 20, 1998, her
co-workers placed a three foot tall balloon in her work station with
a sign that read �I have special needs�;
her supervisor posted a sign that stated �Don't Complain, Don't Criticize
and Don't Condemn�;
on November 6, 1998, she was told by an acting supervisor that he had
her number and to speed up her work; and,
she was denied an accommodation despite repeated requests to fix the
illuminated doorbell.
Procedurally, complainant filed two timely appeals to the Commission
from FADs dated April 30, 1999, and September 24, 1999, dismissing
her complaints. Gorski v. United States Postal Service, EEOC Appeal
No. 01994744 (October 31, 2000); Gorski v. United States Postal Service,
EEOC Appeal No. 01A00676 (October 31, 2000). Because the substance of the
appeals dealt with similar issues and allegations of discrimination, we
consolidated the appeals. The Commission reversed the agency's decision
dismissing the complaints for failure to state a claim and remanded the
complaints for further processing.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish that she was denied
a reasonable accommodation. Specifically, the AJ found that although
complainant was an individual with a disability, she failed to show that
waiting on customers at the service window was an essential function of
her position. The AJ also concluded that complainant failed to show
that she was subjected to a hostile work environment. In addition,
the AJ found that the agency took corrective action and disciplined
the individual responsible for the balloon incident.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred when he concluded, among other
things, that the disability accommodation she requested was not related
to an essential function of her position. Complainant also contends
that the incidents involving the sign and her supervisor pointing his
finger in combination with threatening remarks, created a hostile work
environment. Complainant further contends that the agency's response
to the �balloon man� incident was so inadequate that it fostered an
atmosphere of harassment and hostility. In response, the agency requests
that we dismiss complainant's appeal.
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.
Hostile Working Environment Claim
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of race, color, religion, sex, national origin,
or retaliation. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
In Trammel v. United States Postal Service, EEOC Appeal No. 01871154
(May 10, 1988), the Commission stated that to demonstrate a prima
facie case of a hostile working environment complainant must show: (1)
that she belongs to a protected group; (2) that she was subjected to
unwelcome harassment; (3) that the harassment complained of was based on
her protected status; (4) that the harassment affected a term, condition
or privilege of employment; and (5) that the agency knew or should have
known of the harassment.
Note that the first four elements of a prima facie case of a hostile
working environment relate to whether a hostile environment actually
existed. The fifth element, showing that the agency knew or should
have known of the harassment, addresses the issue of whether the agency
should be held liable for the existence of a hostile working environment.
The answer to that question depends upon whether the harassment was
by a supervisor or co-workers and what action, if any, the agency took
upon learning of the harassment. Trammel still correctly sets forth the
rule of agency liability for cases involving harassment by a co-worker.
For example, in a hostile working environment case involving a co-worker
a complainant must show, as part of his prima facie case, that the agency
failed to take prompt remedial and appropriate action although it was
aware of the harassment. Lutticken v. Department of Health and Human
Services, EEOC Request No. 05900386 (April 27, 1990)(Where the agency
issues a letter of reprimand to the offender within four days of the
alleged harassment, the employee fails to establish a prima facie case).
The Commission noted that what constitutes appropriate action varies
with the circumstances.
In order to avoid liability for hostile working environment harassment
engendered by a co-worker, the agency must show: (1) that the conduct
complained of did not occur; (2) that the conduct complained of was not
�unwelcome�; (3) that the alleged harassment was not �sufficiently severe
or pervasive� to alter the conditions of complainant's employment; (4)
that immediate and appropriate corrective action was taken as soon as
the agency was put on notice; and/or (5) there is no basis for imputing
liability under agency principles. See Gieruti v. United States Postal
Service, EEOC Appeal No. 01933461 (August 25, 1994); Bouchell v. United
States Postal Service, EEOC Appeal No. 01932122 (June 23, 1994).
In determining whether a working environment is hostile, factors to be
considered are the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). The Commission
notes that unless the conduct is severe, a single group of isolated
incidents will not be regarded as discriminatory harassment. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). That is, the
conduct at issue must be sufficiently pervasive and must be directed at
the employee because of her membership in a protected group.
In the instant case, the agency concedes that the conduct occurred and
that the conduct was inappropriate. However, even assuming, arguendo,
that the conduct was sufficiently severe and pervasive to alter the
condition of complainant's employment, the agency contends that it acted
promptly and appropriately to prevent further harassment once complainant
brought her complaints to the attention of management. We agree.
The record establishes that when complainant reported the �balloon man�
to management officials, it was immediately removed. In addition,
the record shows that several hours later, complainant was informed
that there had been a meeting about the incident with management
officials, the individual (CW1: male, no known disability, no known
prior protected activity) alleged to have brought the �balloon man� and
his union representative. The record further establishes that CW1 was
given an official job discussion and instructed that if he engaged in
future acts of this kind, he could possibly be removed. The Commission
also notes that CW1 did not have any prior discipline problems.
In regard to the pornography, the record shows that when complainant
reported the magazines on the shelf in the box section they were removed.
The Commission notes that the magazines were rediscovered only when
complainant was looking through the desk of her acting supervisor.
The Commission finds that other than complainant's own assertion, there is
no evidence that the �Don't Complain, Don't Criticize and Don't Condemn�
sign was directed at her. Management contends that the sign was posted
to foster a positive relationship in the office amongst the workers.
In regard to the �speed it up� and �I have your number� comments,
management explained that the unit was understaffed and complainant was
working without urgency to get work done. Management later apologized for
the unprofessional tone used in making these statements. Complainant
did not produce sufficient evidence that these reasons were a pretext
for discriminatory animus and/or retaliatory motive. Accordingly,
the Commission finds that these incidents, standing alone, were not
sufficiently severe to constitute a hostile working environment.
Reasonable Accommodation Claim
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. ��
1630.2(o) and (p). Reasonable accommodation means (i) modifications
or adjustments to a job application process that enable a qualified
applicant with a disability to be considered for the position she
desires; (ii) modifications or adjustments to the work environment, or
to the manner or circumstances under which the position held or desired
is customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position; (iii)
modifications or adjustments that enable a covered entity's employee with
a disability to enjoy equal benefits and privileges of employment that are
enjoyed by its other similarly situated employees without disabilities.
29 C.F.R. � 1630.2(o)(2).
Assuming arguendo that complainant is a qualified individual with a
disability, the Commission finds that, although complainant requested
a reasonable accommodation, she failed to produce evidence that
the requested accommodation would enable her to perform an essential
function of her position. In point of fact, the record evidence shows
that complainant waited on customers on an occasional basis, but her
primary responsibility was sorting first-class mail.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that any
of the agency's actions were in retaliation for complainant's prior EEO
activity; were motivated by discriminatory animus toward complainant's sex
and/or disability; or constituted a denial of reasonable accommodation.
We discern no basis to disturb the AJ's decision. 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 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
March 24, 2003
__________________
Date