Melanie Ehman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 21, 2009
0120072118 (E.E.O.C. May. 21, 2009)

0120072118

05-21-2009

Melanie Ehman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Melanie Ehman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120072118

Hearing No. 510200600236X

Agency No. 4H335002106

DECISION

On March 23, 2007, complainant filed an appeal from the agency's February

15, 2007 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 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(a). For the following reasons, the Commission

AFFIRMS the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Part-Time Flexible Sales and Services Associate at the agency's

Bradenton Beach, Florida, Post Office.

Complainant alleged numerous actions by the Postmaster at the Bradenton

Beach Post Office that she believes constituted harassment and created

a hostile work environment. For example, complainant alleged that she

was told by a co-worker that when she began working at the Bradenton

Beach facility, her appointment was announced by the Postmaster as,

"Unfortunately we are getting [complainant] as our clerk. I didn't hire

her. She won her job through a union grievance." Complainant alleged

that the Postmaster subsequently told her that no one liked her.

Complainant alleged that the Postmaster threatened to issue her a Letter

of Warning if she came to work late, or if she took too long or too short

of a lunch break. She further alleged that the Postmaster called her

"lazy" and a "slacker."

Further, complainant alleged that the Postmaster did not allow her to

take breaks. Specifically, the Postmaster allegedly told her that

she could not take a break because she was already on overtime, and

that she had to learn to manage her time better or she would be fired.

Further, the Postmaster allegedly told her she could not take a break

until all the mail was given to the carriers. Complainant asserts that

the Postmaster followed her around to watch her work, and put pressure

on her for trivial matters.

On November 16, 2005, the Postmaster called complainant into his office

and told her that she had no sense of urgency and was not performing

her job satisfactorily. The Postmaster told complainant that she only

cases three feet of mail per hour, and when he gives her freedom it is

even worse. The Postmaster told complainant to punch out and leave.

Additionally, the Postmaster later told complainant that her lack of

urgency was hurting the production of the Post Office, and that something

was going to have to change.

Complainant alleges that on February 7, 2006, after she had been out of

the office on extended leave, the Postmaster left her a message saying

that she had to get clearance from the medical unit or she could not

come back to work the next day. When complainant failed to provide the

medical documentation on February 8, 2006, the Postmaster put her on

Leave Without Pay and refused to approve annual leave for her.

On December 24, 2005, complainant filed an EEO complaint alleging that

she was discriminated against on the bases of religion (Christian), sex

(female), age (47), and in retaliation for prior protected EEO activity

when:

1. From March, 2005, until October 26, 2005, she was subjected to ongoing

harassment from her supervisor;

On April 19, 2006, complainant filed another EEO complaint alleging that

she was discriminated against on the bases of religion (Christian), sex

(female), age (47), and in retaliation for prior protected EEO activity

when:

2. Beginning on February 15, 2006, and continuing, she was subjected to

harassment by management officials that included bullying and belittling,

following her, not allowing her to take breaks, threats of discipline,

asking her to resign, and treating her differently than other employees

on scheduling and uniform allowances.

Complainant's two complaints were subsequently consolidated. At the

conclusion of the investigation,1 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 but subsequently withdrew her request. Consequently,

on February 15, 2007, the agency issued a final decision pursuant

to 29 C.F.R. � 1614.110(b). The decision concluded that complainant

failed to prove that she was subjected to discrimination as alleged.

Complainant now appeals to the Commission.

ANALYSIS AND FINDINGS

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").

Complainant alleges that she was harassed by the Postmaster of her

facility on the bases of her religion (Christian), sex (female), age

(47), and in retaliation for prior protected EEO activity. Harassment is

actionable only if the incidents to which complainant has been subjected

were "sufficiently severe or pervasive to alter the conditions of

[complainant's] employment and create an abusive working environment."

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998); Cobb

v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

To establish a prima facie case of harassment, complainant must show that:

(1) she is a member of a statutorily protected class and/or was engaged in

prior EEO activity; (2) she was subjected to unwelcome verbal or physical

conduct related to her membership in that class and/or her prior EEO

activity; (3) the harassment complained of was based on her membership

in that class and/or her prior EEO activity; (4) the harassment had the

purpose or effect of unreasonably interfering with her work performance

and/or creating an intimidating, hostile, or offensive work environment;

and (5) there is a basis for imputing liability to the employer. See

Roberts v. Department of Transportation, EEOC Appeal No. 01970727

(September 15, 2000) (citing Henson v. City of Dundee, 682 F.2d 897

(11th Cir. 1982)). Further, the harasser's conduct is to 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).

Upon review, the Commission finds that complainant failed to establish

a prima facie case of harassment because complainant has not shown

that the alleged harassment was based on her age, sex, religion, or in

reprisal for prior protected EEO activity. Specifically, the record

establishes that complainant had deficiencies in her performance and

issues with attendance which were affecting the overall productivity of

the office and, as a result, the Postmaster had to address those issues.

Nothing in the record suggests that the Postmaster's actions were more

likely than not based on a protected basis. Further, the conduct of the

Postmaster did not rise to the level of harassment because it was not

sufficiently severe or pervasive to create a hostile work environment.

While the Postmaster criticized complainant's work performance, the

criticism was not hostile or abusive; further, supervisors can correct

employees for mistakes and address performance issues.

CONCLUSION

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 decision, because a preponderance of the evidence of record does

not establish that discrimination occurred as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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

May 21, 2009

Date

1 We note that the agency originally issued a final decision on

February 13, 2006, in which it dismissed the first complaint prior to

an investigation. Complainant appealed the dismissal to the Commission,

which docketed the appeal as EEOC Appeal No. 0120061908. However,

prior to a decision being issued by the Commission, the agency rescinded

its final decision and informed complainant and the Commission that they

would be conducting an investigation. As a result, the Commission closed

the appeal without issuing a decision.

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0120072118

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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