01a60996
05-24-2006
Ruby Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ruby Williams v. United States Postal Service
01A60996
May 24, 2006
.
Ruby Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60996
Agency No. 1C-451-0045-05
DECISION
Complainant filed an appeal with this Commission from the October 20,
2005 agency decision finding no discrimination.
Complainant alleged that the agency discriminated against her on the
bases of religion (Christian) and in reprisal for prior EEO activity when:
(1) complainant was harassed on February 23, 2005; and (2) complainant
was constructively discharged on May 13, 2005.
In its decision, the agency concluded that complainant failed to establish
that she was an aggrieved employee because she was not subjected to an
adverse employment action or to a constructive discharge. The agency
also found that complainant had not engaged in any EEO activity prior to
February 23, 2005. The agency also concluded that complainant failed
to demonstrate that she was subjected to a hostile work environment,
noting that complainant identified the one incident that occurred on
February 23, 2005. The agency further concluded that complainant failed
to show that her retirement on May 13, 2005, was the result of religious
discrimination or retaliation.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or in
reprisal is unlawful. A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct
is severe. See Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
An objectively hostile or abusive work environment exists when a
reasonable person would find it hostile or abusive and the complainant
subjectively perceives it as such. In a case of co-worker harassment,
an agency is responsible for acts of harassment in the workplace where the
agency (or its agents) knew or should have known of the conduct, unless
it can show that it took immediate and appropriate corrective action.
Equal Employment Opportunity Commission Enforcement Guidance: Vicarious
Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999).
To determine whether a work environment is objectively hostile or
abusive, the trier of fact must consider all of the circumstances,
including the following: 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, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Accordingly,
harassment is actionable only if the harassment to which the complainant
has been subjected to was sufficiently severe or pervasive to alter the
conditions of complainant's employment.
To establish a prima facie case of harassment, a complainant must show
that: (1) complainant belongs to a statutorily protected class; (2)
complainant 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 the statutorily protected class; and (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) some basis exists to impute liability to the employer, i.e.,
supervisory employees knew or should have known of the conduct but failed
to take corrective action.
In her affidavit, complainant stated that she was harassed on February 23,
2005, by the Supervisor of Distribution Operations (SDO) at the Main Post
Office in Toledo, Ohio. She stated further that the SDO said to her:
�Ruby, Ruby, key thirteen pieces of mail a minute,� and pointed at her
and said, �you so-called Christian. If I were your supervisor, I'd fire
you - you're pathetic and getting paid for nothing. Key that mail!�
Complainant stated that the SDO was not her supervisor and was not on
her tour. She also stated that on more than one occasion the SDO called
her a �so-called Christian.� She stated that the SDO frightened her.
Complainant testified that she told the SDO to get her a union steward
and he said: �You ain't getting no union steward.� She stated that
after the SDO left, he came back around her and said, "You so-called
Christian," and kept circling her. She also stated that his body language
and the names that he came up with out of nowhere scared her to death.
Complainant also stated that because of her constant fear of the SDO and
the failure of management to alleviate the situation, she felt that she
had no recourse but to retire on May 13, 2005.
As an initial matter, the Commission notes that, because this is an
appeal from an agency 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. See 29 C.F.R. � 1614.405(a).
The Commission finds that complainant failed to establish a prima
facie case of harassment. Accepting complainant's statements as true
and considering all of the evidence in the light most favorable to
complainant, the Commission cannot find that the conduct which occurred on
February 23, 2005, or the conditions at work were so severe and pervasive
so as to have altered the conditions of complainant's employment and
created a hostile work environment. The Commission also cannot find
that complainant was constructively discharged. Although the record
reveals that complainant submitted her retirement, complainant has not
shown that the work environment was so discriminatorily hostile that
she was forced to retire.
The agency's finding of no discrimination is AFFIRMED.
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
May 24, 2006
__________________
Date