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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0120073304
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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