01A31100
02-12-2004
Patricia Fenwick-Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capitol-Metro Area), Agency.
Patricia Fenwick-Smith v. United States Postal Service
01A31100
February 12, 2004
.
Patricia Fenwick-Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capitol-Metro Area),
Agency.
Appeal No. 01A31100
Agency Nos. 1K-201-0074-00; 1K-201-0016-01
Hearing Nos. 100-A1-7713X; 100-A2-7210X
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 at all relevant times, complainant was employed as
a Maintenance Support Clerk, at the agency's Processing and Distribution
Center, in Washington, D.C. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on September 25, 2000, alleging that the agency discriminated
against her and harassed her on the bases of sex (female), disability
and in reprisal for prior EEO activity when, between March and October
2000, she was subjected to the following events: she was forced to go to
the Employee Assistance Program (EAP) for an alleged attendance problem;
she was required to submit medical evidence for absences; her supervisor
accused her of keeping a requisition in her in-box since; some of her
leave slips were marked �unscheduled,�; her supervisor would not accept
a leave slip filled out by a co-worker; she was assigned inventory HVAC
equipment without help; another supervisor did not give her protective
clothing; she was assigned to handle dirty and clean dust mops; she was
not allowed to deliver medical documentation to the medical unit; and,
she was not permitted to change a class.<1>
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a decision without
a hearing, finding no discrimination. In so finding, the AJ noted
that there are no issues of material facts. The AJ found that using a
disparate treatment analysis, complainant failed to establish a prima
facie case of discrimination because similarly situated employees
outside of complainant's protected class, were treated the same as
complainant. Additionally, the AJ found that complainant proffered no
evidence to refute the agency's legitimate, nondiscriminatory reasons.
Also applying a hostile work environment analysis, the AJ found that
the challenged-actions, neither individually nor collectively, rise to
the level of actionable hostile work environment harassment. The AJ
further found that complainant failed to adduce any evidence that the
conduct complained of was based on any of the alleged prohibited factors.
The agency's final order implemented the AJ's decision.
On appeal, complainant, through her attorney, reiterates her contention
that she was subjected to harassment on the alleged bases, that was
severe, pervasive and humiliating. The agency requests that we affirm
its final order. 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).
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine dispute
of material fact exists. See Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). We find that the AJ's decision
referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that the agency's actions
were motivated by discriminatory animus toward her protected classes.
Therefore, 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
February 12, 2004
__________________
Date
1 Complainant originally raised other claims that were dismissed by the
agency. She asked the AJ to reinstate those claims, however, by Order
dated May 16, 2002, the AJ denied the request. We do not address those
additional claims herein, as complainant has not specifically contested
them on appeal.