01983941
01-07-2000
Sandra Urquhart-Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region) Agency.
Sandra Urquhart-Brown v. United States Postal Service
01983941
January 7, 2000
Sandra Urquhart-Brown, )
Complainant, )
) Appeal No. 01983941
v. ) Agency No. 1H333105195
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region) )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black), and reprisal (prior EEO activity), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> Complainant alleges she was discriminated against when
she was constantly harassed, monitored, and scrutinized regarding her
work performance. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission affirms the FAD.
The record reveals that during the relevant time, complainant was
employed as a full-time Clerk, at the agency's South Florida facility.
Complainant alleged based on her race and reprisal she was discriminated
against when: (1) on April 27, 1995, her supervisor (S1) phoned her
private physician which she viewed as a privacy violation<2>; (2) on
May 2, 1995, a violation of the Family Medical Leave Act (FMLA) occurred
when she was denied the right to choose her leave; (3) on May 5, 1995,
a Responsible Management Official (RMO) showed a lack of concern about the
complainant's privacy being violated; (4) on May 19, 1995, her doctor's
note was refused as insufficient; (5) on June 2, 1995, she was instructed
to violate regulations; (6) on June 8 and 9, 1995, she was denied the
right to see a union steward by the RMO; (7) and on June 14, 1995,
she was badgered and her Miranda rights were violated. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint on October 23, 1995. At the conclusion of
the investigation, complainant requested that the agency issue a FAD. The
FAD concluded that complainant failed to establish a prima facie case
of race discrimination and reprisal because she presented no evidence
that similarly situated individuals not in her protected classes were
treated differently under similar circumstances. Notwithstanding the
finding, the FAD indicated that even if complainant had established a
prima facie case, the agency had provided legitimate, nondiscriminatory
reasons for its actions, namely that since complainant had been absent
from work from April 20 -27, 1995, her physician was telephoned to
clarify whether she could perform her duties. Additionally, the record
revealed that complainant was allowed to use FMLA; that her doctor's
note was found to be sufficient since she was provided with approved
leave; S1 had monitored complainant's performance because she had
questions regarding her work performance and the agency denied instructing
complainant to violate regulations. The record also indicated that the
RMO did not recall denying complainant the right to see a shop steward
but she indicated that complainant spent a substantial amount of time
at the steward's cage, so the claim that she was denied time is unlikely.
On appeal, complainant again contends that the agency failed to protect
her privacy. The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying
McDonnell Douglas to retaliation cases), the Commission agrees with
the agency that complainant failed to establish a prima facie case of
race discrimination. In reaching this conclusion, we note that the
record reveals that other employees were treated in the same manner
that complainant was treated. With respect to complainant's claim of
reprisal we find that complainant must show: (1) that she engaged in
prior protected EEO activity; (2) that the responsible agency official
knew of that activity; (3) that she was subjected to an adverse employment
action; and (4) that the adverse employment action followed the protected
activity at such a time and in such a manner as to permit an inference of
retaliatory motivation. See Mausr v. Justice, EEOC Appeal No. 01951648
(January 23, 1998). We find that complainant failed to establish a
prima facie case of reprisal because although management was aware of
her prior EEO activity she failed to show that she was subjected to an
adverse employment action. In any event, we note that the agency provided
legitimate, nondiscriminatory reasons for its actions, namely, that S1's
call was made to complainant's physician in order to rectify the status
of complainant's expected return to duty date and her ability to perform
her duties. We find her performance was monitored due to questions about
her work performance and we note that despite complainant's contentions,
she was allowed to use FMLA leave.
With regard to complainant's claim that these actions caused a hostile
work environment, we find that harassment of an employee that would
not occur but for the employee's race, color, sex, national origin,
age, disability, or religion is unlawful, if it is sufficiently severe
or pervasive. Jackson v. United States Postal Service, EEOC Appeal
No. 01972555 (April 15, 1999). In determining whether a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6. The Supreme Court
stated: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would not find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993). After a careful review of the record,
we find that complainant failed to demonstrate that she was subjected to
a hostile work environment. We find the incidents raised by complainant
are performance related measures and were not severe or pervasive enough
to create a hostile work environment. See Harris, supra.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 The Commission has previously held that the proper recourse for
alleged violations of the Privacy Act lie under that statute. See Battle
v. Department of Transportation, EEOC Request No. 05970976 (June 24,
1999); and Bucci v. Department of Education, EEOC Request No. 05890289
(April 12, 1989). Therefore, complainant's claim of having her privacy
violated does not state an actionable claim within the EEO process.