0120091549
05-14-2009
Olga D. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Olga D. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091549
Hearing No. 430-2007-00143X
Agency No. 4K-280-0027-06
DECISION
On November 17, 2008, complainant filed an appeal from the October 20,
2008 final agency order 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
During the relevant period, complainant worked as a Rural Carrier
Associate at a North Carolina facility of the agency. In a formal EEO
complaint dated November 28, 2006, complainant alleged that the agency
subjected her to hostile work environment harassment on the bases of race
(African-American), color (Black), and reprisal for prior protected EEO
activity. To support her claim of harassment, complainant alleged that
(1) in mid-July 2006, management denied her request to transfer to Route
1, (2) on September 14, 2006, the facility Postmaster (S1) called her
into her office and asked if she told a job applicant that S1 is a bigot,
(3) on September 23, 2006, she found a copy of a "Redneck Dictionary" that
was offensive to her, (4) on September 30, 2006, S1 called her name in a
"stand-up talk," (5) on October 21, 2006, management gave her written
notice about customer complaints, (6) on October 7, 2006, management
gave her a copy of an e-mail about personal items under her case, (7) on
October 21, 2006, management gave her a notice about no talking unless
about matters related to agency business, and (8) on October 28, 2006,
management gave her information about security procedures.
The agency dismissed (1) for untimely EEO contact and accepted (2)
through (8) for investigation. During the agency investigation, as
to the specific alleged incidents, S1 stated (2) all of her employees
were questioned because a female called the agency indicating that she
applied for a temporary rural associate position and was not hired
because S1 is a racist, and that one of S1's employees spoke of her
bigotry, (3) she contacted Labor Relations to ask about complainant's
concerns regarding an e-mail containing the term "redneck" found in a
coworker's route book and, subsequently, informed all employees that
offensive comments will not be tolerated and to stick to business-only
conversation, (4) the names of employees present at the meeting were used
to present clarifying examples of offensive behavior, (5) she received
several complaints from business owners that complainant sped through
their area, failed to pick up outgoing mail, and had a negative attitude
so, as a Postmaster, she had an obligation to inform complainant of said
complaints although she did not take disciplinary action against her, (6)
complainant was given the same directive as all other facility employees
because there was concern in different facilities about priority mail
accumulating under equipment and cases, (7) a coworker complained that
complainant and another employee talked for some time across a workroom
floor about personal matters and it was disruptive, but that complainant
was later informed that non-disruptive conversations are allowed, and
(8) every employee received a copy of agency security procedures.
At the conclusion of its investigation, the agency provided complainant
with a copy of her report of investigation and informed her of the
right to request a hearing before an EEOC Administrative Judge (AJ) or
an immediate final agency decision. Complainant requested the former.
The AJ determined that summary judgment was appropriate and issued a
decision without a hearing. The AJ noted that complainant did not oppose
the dismissal of (1), and found that complainant failed to establish by
a preponderance of the evidence that the agency's actions in (2) - (8)
were based on discriminatory motives. Specifically, the AJ concluded
that the agency's actions for (2), (4), and (7) were in response to
claims of discrimination and harassment in the workplace; and, in (5)
through (8) addressed legitimate business needs. Further, for (3), the
AJ found that the agency took prompt corrective action. The AJ found it
unnecessary to impute liability to the agency. Subsequently, the agency
issued a final order implementing the AJ's finding. The instant appeal
from complainant followed, without substantive comment.
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
To start, we find no genuine issue of material fact exists so it was
appropriate for the AJ to issue a decision without a hearing on this
record. See 29 C.F.R. � 1614.109(g)(3).
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
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).
Here, complainant alleges that she was subjected to hostile work
environment harassment. However, we find that she failed to show that
the agency's actions were based on her statutorily protected classes.
See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998). Hence, based on a thorough review of the record,
we AFFIRM the final agency decision finding no discrimination.
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 14, 2009
__________________
Date
2
0120091549
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091549