Sandra Urquhart-Brown, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region) Agency.

Equal Employment Opportunity CommissionJan 7, 2000
01983941 (E.E.O.C. Jan. 7, 2000)

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.