Nancy Ozlek, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.

Equal Employment Opportunity CommissionFeb 23, 2000
01985348 (E.E.O.C. Feb. 23, 2000)

01985348

02-23-2000

Nancy Ozlek, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.


Nancy Ozlek v. United States Postal Service

01985348

February 23, 2000

Nancy Ozlek, )

Complainant, )

) Appeal No. 01985348

v. ) Agency No. 1C191005097

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Allegheny/Mid-Atlantic), )

Agency. )

)

DECISION

Nancy Ozlek (complainant) timely initiated an appeal of a final agency

decision (FAD) concerning her complaint of unlawful employment

discrimination on the bases of race (Caucasian) and sex (female),

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> Complainant alleges she was discriminated

against on December 16, 1996 when: (1) management did nothing when a

co-worker brushed his finger against her chest in a threatening way;

and (2) management did nothing when another co-worker approached her

and screamed at her, causing her to miss work for several weeks due to

work-related stress. The appeal is accepted in accordance with EEOC Order

No. 960.001. For the following reasons, the Commission AFFIRMS the FAD.

The record reveals that during the relevant time, complainant was employed

as a PS-04 Mailhandler, at the agency's Philadelphia Bulk Mail Center.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on April 28, 1997,

alleging discrimination as described above. At the conclusion of the

investigation, the agency advised complainant of her right to request an

administrative hearing. After receiving no response within the required

time period, the agency issued a FAD on May 29, 1998.

The FAD concluded that complainant failed to establish a prima facie

case of race or sex discrimination because she presented no evidence

that similarly situated individuals not in her protected classes

were treated differently under similar circumstances. The FAD went

on to find that management articulated legitimate non-discriminatory

reasons for its actions. Specifically, management officials testified

that when complainant notified them of the incidents in question, an

investigation was immediately instigated. The employee involved in

the first allegation was told that he could not continue his acting

supervisor duties or training until the investigation was completed.

After talking with the parties involved and witnesses to the altercations,

management determined that complainant was not physically touched and

that she initiated the first altercation. Moreover, management noted

that the Crises Intervention Team (CIT) was immediately notified and

that a CIT member set up a meeting with complainant. Finally, a member

of CIT who was witness to the incident described in Issue No. 2, noted

that he spoke with the co-worker involved immediately and told him not

to concern himself in other employee's situations.

Finding that complainant offered nothing to indicate that the agency's

reasons were not credible or were a pretext to mask discrimination,

the FAD concluded that complainant had not met her burden of proving

discrimination.

On appeal, complainant reiterates her contention that the supervisors

involved ignored her feelings of pressure and intimidation and made no

effort to help her and notes that the coworker involved in Issue No. 1

had gone out of his way to confront her at other times. The agency

requests that we affirm its FAD.

FINDINGS AND ANALYSIS

In the absence of direct evidence of discrimination or retaliation,

the allocation of burdens and order of presentation of proof in a Title

VII case is a three-step process. McDonnell-Douglas Corp v. Green,

411 U.S. 792 (1973).

Complainant has the initial burden of establishing a prima facie case

of discrimination. A prima facie case of discrimination based on sex or

race is established where complainant has produced sufficient evidence

to show that (1) she is a member of a protected class; (2) she was

subjected to an adverse employment action; and (3) similarly situated

employees outside her protected class were treated more favorably

in like circumstances. Complainant may also meet this burden by

presenting other evidence which raises an inference of discrimination.

Potter v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);

Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

If complainant has established a prima facie case, the burden

of production shifts to the agency to articulate a legitimate

non-discriminatory reason for the adverse employment action. Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).

If the agency articulates a reason for its actions, the burden of

production then shifts back to complainant to establish that the

agency's proffered explanation is pretextual, and that the real reason

is discrimination. Throughout, complainant retains the burden of proof

to establish discrimination by a preponderance of the evidence. It is

not sufficient "to disbelieve the employer; the fact finder must believe

the plaintiff's explanation of intentional discrimination." St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original).

After a careful review of the record, the Commission agrees with the

agency that complainant failed to establish a prima facie case of

race or sex discrimination. Complainant failed to establish that

any similarly situated individuals were treated more favorably in

similar circumstances. Moreover, she offered no other evidence that

raises an inference of sex or race discrimination. We note, however,

that the FAD may have mischaracterized complainant's claims as claims

of disparate treatment when, in truth, complainant intended to allege

race and sex-based/sexual harassment. Complainant's complaint describes

two incidents in which co-workers intimidated her and notes that both

of the alleged intimidators were Black males and that she was the only

White female present. Complainant also described how management failed

to sufficiently address this behavior, causing her emotional distress

which made it impossible for her to work for several weeks.

Assuming, then, that complainant's complaint is more accurately seen

as one of harassment, we find that she has failed to state a claim

of harassment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993), the Supreme Court reaffirmed the holding of Meritor Savings

Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable

if it is sufficiently severe or pervasive to alter the conditions of

the complainant's employment. The Court explained that an "objectively

hostile or abusive work environment" is created when "a reasonable person

would find [it] hostile or abusive and the complainant subjectively

perceives it as such." Harris, supra at 21-22. Thus, not all claims

of harassment are actionable. Where a complaint does not challenge

an agency action or inaction regarding a specific term, condition or

privilege of employment, a claim of harassment is actionable only if,

allegedly, the harassment to which the complainant has been subjected

was sufficiently severe or pervasive to alter the conditions of the

complainant's employment.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable

to the complainant, determine whether they are sufficient to state a

claim. See Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997).

In the case at hand, complainant complained of two incidents which

occurred on the same day and involved altercations with two coworkers.

While one of these altercations lasted several minutes, the other was of

shorter duration and occurred in front of a supervisor who complainant

acknowledged immediately told the coworker involved to get back to work

and keep out of other employees' issues. Even assuming, therefore,

that these events transpired exactly as described by complainant, they

did not create an environment which a reasonable person would find to

be hostile. Indeed, it is well-settled that unless the conduct is very

severe, a group of isolated incidents will not be regarded as creating a

discriminatory work environment. See James v. Department of Health and

Human Services, EEOC Request No. 05940327 (September 20, 1994); Walker

v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982). The altercations

described by complainant, while no doubt disturbing to her, do not rise

to this level.

Therefore, after a careful review of the record, including complainant's

contentions on appeal and arguments and evidence not specifically

addressed in this decision, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

02/23/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

__________________________

Equal Employment Assistant

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.