Peggy Garmon, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionDec 4, 2009
0120073304 (E.E.O.C. Dec. 4, 2009)

0120073304

12-04-2009

Peggy Garmon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.


Peggy Garmon,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120073304

Hearing No. 450-2007-00037X

Agency No. 4G-752-0261-06

DECISION

On July 18, 2007, complainant filed an appeal from the agency's June

18, 2007 final order concerning her equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 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.

ISSUE PRESENTED

Whether substantial evidence supports the AJ's conclusion that complainant

was not subjected to disparate treatment and harassment on the basis of

disability and in reprisal for prior EEO activity.

BACKGROUND

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

worked as a letter carrier at the Main Post Office in Garland, Texas.

On June 16, 1986, the agency placed complainant in a modified limited

duty assignment because she suffered an on-the-job ankle injury.1 In

December 2002, complainant accepted a limited duty assignment that stated

that she was restricted from lifting or carrying 10 to 25 pounds for four

hours per day (intermittently); standing and walking up to 30 minutes

at a time for up to four hours per day; kneeling, bending, stooping,

twisting, and pulling/pushing up to one hour per day; and, reaching

above her shoulder for up to four hours per day. Complainant worked

from 6:30 a.m. to 2:30 p.m., with Saturdays and Sundays off. Because of

complainant's restrictions, she mainly worked as an address management

systems' technician.

In December 2003, complainant appeared on a television show cooking

competition. Some employees believed that complainant engaged in

activities on the television show that were inconsistent with her

claimed medical condition. After the show aired, a coworker reported

complainant's appearance on the show to the Postal Investigative Service,

which conducted an investigation to determine whether complainant engaged

in fraud regarding her medical condition. The Postal Investigative

Service found that complainant engaged in fraud and removed her from

the agency in December 2005.

Complainant filed a grievance challenging her removal, and an arbitrator

overturned her removal in a decision dated April 27, 2006. In conjunction

with her anticipated return to work, complainant's physician submitted a

new CA-17 form to the agency that contained the same medical restrictions

complainant had before her removal but noted that she could perform

curbside delivery duties. Subsequently, the agency offered complainant a

new modified assignment that primarily involved delivering mail curbside.

Under the new assignment, complainant worked from 10:00 a.m. until 6:30

p.m., on Mondays, Tuesdays, Fridays, and from 7:30 a.m. to 4:00 p.m. on

Saturdays. Complainant filed a grievance regarding her changed work

scheduled, and pursuant to a settlement agreement dated June 15, 2006,

the agency moved complainant's start time to 9:30 a.m., and changed her

days off to Sundays and Mondays.

On June 30, 2006, complainant filed an EEO complaint alleging that she

was discriminated against on the basis of disability and in reprisal

for prior protected EEO activity when:

1. On May 5, 2006, her schedule and days off were changed to her

detriment; and

2. Beginning on May 5, 2006, the agency subjected her to a hostile work

environment by allowing employees to call her and other limited duty

employees names such as "sick, lame and lazy," and to suggest that they

were using their injuries to get a free ride.

At the conclusion of the investigation, 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, and the AJ held a hearing on May 9, 2007.

Five witnesses testified at the hearing, including complainant.

Complainant testified that within a few days after the agency changed

her schedule in May 2006, a supervisor on the late shift came to her

desk at around 5:00 p.m. and stated, "Oh, my God, Peggy, what are you

still doing here?" HT, p. 115. Complainant stated that the supervisor's

actions were harassing because he had to have already have known that

her schedule was changed before he made those comments.

Complainant further testified that she was harassed when employees

called her and other limited duty employees "sick, lame and lazy, blind,

crippled and crazy" and alleged that limited duty employees manipulated

the system to get a "free ride." Hearing Transcript (HT), p. 111.

Complainant further testified that employees questioned whether she was

a letter carrier and if she had a job at the facility. Additionally,

complainant testified that a carrier stated that the agency could not fire

anyone "unless you shoot them," and another carrier said, "Give the job to

[complainant]; she doesn't have a job." HT, p. 121. Complainant further

stated that she reported the comments to her supervisor, but told her

not to say anything because it would "only make my life more miserable."

HT, p. 112. She stated that the supervisor told her to document the

incidents in writing.

In a decision dated May 30, 2007, the AJ found that complainant was not

subjected to unlawful discrimination or harassment. Specifically, the AJ

concluded that complainant was not an individual with a disability. The AJ

further found that complainant failed to establish a prima facie case of

disability discrimination with respect to claim 1 because she explicitly

stated in an investigative affidavit that reprisal was the only basis

on which she claimed discrimination for this matter, and she failed to

show that similarly situated non-disabled employees were treated more

favorably than she was treated. The AJ further found that although

complainant established a prima facie case of reprisal for claim 1,

she failed to prove that the agency's explanations for its action was

pretext for unlawful discrimination.

With respect to claim 2, the AJ concluded that there was a problem at the

Garland facility with respect to coworkers' comments regarding limited

duty employees, but complainant's allegations do "not rise to the severe

and pervasive level." AJ's Decision, p. 37. The AJ further noted that

many of the incidents raised by complainant or other witnesses occurred

before May 2006, which is outside the purview of the accepted claim.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the AJ improperly found no

discrimination or harassment. Complainant argues that she is an

individual with a disability and reiterates her claim that she

was subjected to harassment which included employees calling her

"useless" and telling her that she was faking her medical condition.

Complainant contends that many of these comments were made in the presence

of supervisors, but supervisors ignored or laughed at the comments.

Complainant further contends that management has not disciplined employees

for their harassing actions, and that the harassment continues unabated.

The agency requests that we affirm its final order.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

Harasssment and Disparate Treatment

In order to prevail in a disparate treatment claim, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to

the agency to articulate a legitimate, nondiscriminatory reason for

its actions. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,

by a preponderance of the evidence, that the agency's explanation is

pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,

120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,

519 (1993).

To establish a claim of hostile environment harassment, complainant must

show that: (1) she belongs to 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 her statutorily protected class; (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; and

(5) there is a basis for imputing liability to the agency. See Henson

v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct

should 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 at 6 (March 8, 1994). Further,

the incidents must have been "sufficiently severe and 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., 23 U.S. 75 (1998).

For purposes of analysis, we assume that complainant is a qualified

individual with a disability and established a prima facie case of

reprisal and disability discrimination. Nonetheless, we find that the

agency provided non-discriminatory explanations for its actions with

respect to claim 1. Specifically, management testified that complainant's

work schedule was changed because the Garland facility is required to

deliver express mail for the entire city on Sundays, and by assigning

complainant to express mail delivery on Sundays, the agency was able to

schedule part-time flexible employees to perform other carrier duties

that were beyond her restrictions without incurring Sunday overtime hours

for part-time flexible employees. Management further stated that it is

the agency's common practice to assign express mail delivery to limited

duty employees if that duty is within their restrictions. Additionally,

management stated that complainant was scheduled to case and deliver

mail later in the day because the agency needed these duties performed at

that time of day. Finally, management stated that the address management

systems' duties that complainant previously performed diminished because

of increasing automation.

Complainant contends that her previous work duties were available for her

to perform after May 5, 2006, but we determine that this does not show

that the agency's failure to return her to those duties was motivated by

discriminatory animus. We find that substantial evidence in the record

supports the AJ's determination that complainant failed to prove that

the agency's explanations were pretext for unlawful discrimination.

With respect to complainant's hostile work environment claim (2), we

find that the AJ properly concluded that the alleged incidents were

not sufficiently severe or pervasive enough to constitute a hostile

work environment. Therefore, we find that the AJ properly found that

complainant was not subjected to unlawful harassment or discrimination.

CONCLUSION

Accordingly, based on a thorough review of the record, the Commission

affirms the agency's final order.

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

___12/04/09_______________

Date

1 In addition to complainant's ankle injury, she also has a herniated

disk; two bulging disks in her lower back; and, bone spurs in her neck.

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Office of Federal Operations

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