01a42564_r
05-11-2005
Marjorie J. Blaylock, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marjorie J. Blaylock v. United States Postal Service
01A42564
May 11, 2005
.
Marjorie J. Blaylock,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42564
Agency No. 4-H-327-0014-02
Hearing No. 150-2003-08228X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. , 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant was employed as a Letter Carrier at the agency's Maitland,
Florida facility. Complainant filed a formal EEO complaint on December
8, 2001. Therein, complainant claimed that she was discriminated
against on the bases of sex (female), disability (stress, depression),
age (D.O.B. 1/29/1958), and in reprisal for prior EEO activity.<1>
By letter dated January 11, 2002, the agency accepted the following
claim for investigation:
On September 17, 2001, [complainant was] subjected to continuous
harassment when [her] supervisor treated [her] in a hostile manner when
[she] requested overtime resulting in her resignation on November 16,
2001.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, subsequently, however, she requested a
final agency decision.
In its FAD, the agency concluded that complainant was not subjected to
unlawful discrimination. Regarding the constructive discharge claim, the
agency stated that because �[complainant's] complaint does not address
intolerable working conditions, it does not fall within the confines
of a constructive discharge claim.� Regarding complainant's hostile
work environment claim, the agency stated that the alleged incidents do
not rise to the level of discriminatory harassment. The agency further
stated that the record does not reflect that the alleged incidents were
motivated by discrimination.
On appeal, complainant contends that the agency's decision finding no
discrimination is improper. Complainant submits statements describing
various incidents that allegedly took place during her employment with
the agency including: her co-workers were informed by management not to
speak with her; she was told by a supervisor that she should be able
to complete her route within eights hours and �to stop yapping [her]
flap�; a route count was conducted on her route during December 2000;
and on a specified date, a supervisor watched complainant work and told
her �[she] was talking too much.�
Hostile Work Environment Claim
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, 1358 (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, 510 U.S. 17
(1993).
Complainant alleges that he was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) she is a member of a
statutorily protected class; (2) she 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. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Upon review of the record, the Commission finds that the alleged incidents
are not sufficiently severe or pervasive to affect a term or condition
of employment. In addition, we find that complainant has not shown that
the alleged incidents were based on complainant's protected classes.
Constructive Discharge Claim
The Commission determines that complainant failed to establish
that her resignation was the result of a constructive discharge .
The Commission has established three elements which complainant
must prove to substantiate a claim of constructive discharge: (1) a
reasonable person in complainant's position would have found the working
conditions intolerable; (2) conduct that constituted discrimination
against complainant created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. See Walch v. Department of Justice, EEOC Request
No. 05940688 (April 13, 1995). We find that complainant has not shown
that the agency engaged in discrimination which resulted in intolerable
working conditions.
Accordingly, the Commission AFFIRMS the agency's final decision finding
no discrimination.
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
May 11, 2005
__________________
Date
1For purposes of analysis only, we assume, without finding, that
complainant is a person with a disability.