01a03129
08-10-2000
Sharon A. Leger, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sharon A. Leger v. United States Postal Service
01A03129
August 10, 2000
Sharon A. Leger, )
Complainant, )
) Appeal No. 01A03129
v. ) Agency No. 4B-018-0082-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The complainant timely initiated an appeal of a final agency decision
(FAD), dated February 23, 2000, concerning her complaint of unlawful
employment discrimination on the basis of 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> The complainant alleges she was discriminated
against when she was forced to resign because a supervisor (S1) created a
hostile work environment by throwing a tray of mail onto her sorting case.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
the Commission AFFIRMS the agency's FAD.
The record reveals that during the relevant time, the complainant was
employed as a Distribution & Window Clerk, at the agency's Fitchburg,
Massachusetts Post Office facility. The complainant alleged that S1 threw
a tray of mail onto her sorting case after she told him she thought the
tray exceeded her 20-pound lifting restrictions.
Believing she was a victim of discrimination, the complainant sought
EEO counseling and subsequently filed a complaint on July 21, 1999.
The record reveals that the complainant did not submit the affidavit
requested by the EEO Investigator.<2> At the conclusion of the
investigation, the complainant did not respond to the agency's notice
giving her the right to request a hearing or that the agency issue a FAD.
The agency concluded that the complainant failed to establish a prima
facie case of reprisal discrimination because she presented no evidence
of a causal link between her previous EEO activity and S1's action.
Moreover, the agency further found that the incident was not sufficiently
severe or pervasive so as to create a hostile working environment. As to
the complainant's allegation of constructive discharge, the agency found
the she failed to show that the working conditions were intolerable.
On appeal, the complainant completed the affidavit that the agency
had previously sent her, stating that S1's face turned red and he was
angry when she told him that she thought the tray exceeded her weight
restrictions. She states further that he threw the tray from behind her
narrowly missing her and she was shocked. She states that after sorting
about half the tray she began trembling and felt pressure in her chest.
She further states that she could no longer tolerate the harassment from
S1 and informed another supervisor that she quit. She also states that
she did not feel secure in sending an affidavit to the EEO Investigator.
The agency requests that we affirm its FAD.
With regard to reprisal discrimination, the Commission has stated that:
The anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance. . . . A variety of activities has been
found to constitute opposition . . . . Because the enforcement of Title
VII depends on the willingness of employees to oppose unlawful employment
practices or policies, courts have interpreted section 704(a) of Title
VII as intending to provide �exceptionally broad protection to those who
oppose such practices'. . . ." Whipple v. Department of Veterans Affairs,
EEOC Request No. 05910784 (February 21, 1992) (citations omitted).
The Commission has also set forth the criteria for reprisal cases,
as follows:
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) she engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) she was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link . . . The causal connection may be shown by evidence that
the adverse action followed the protected activity within such a period
of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996)(citations omitted). "Generally, the Commission has held that nexus
may be established if events occurred within one year of each other."
Patton v. Department of the Navy, EEOC Request No. 05950124 (June 27,
1996).
Finally, we note that Title VII protects a person "where the employee
has a reasonable, good faith belief that the challenged employment
practice violates Title VII, even if the belief is later found to be
mistaken. . . . The mistaken belief may be one of law or of fact."
Whipple, supra, quoting Wolf v. J.I. Case Co., 617 F. Supp. 858, 868
(E.D. Wis. 1985).
In the present case the record discloses that the complainant filed
and settled an EEO complaint a little less than a year before this
incident occurred. The record further discloses that the complaint
was filed against S1. Unlike the agency, we find that the complainant
has shown the requisite causal connection. However, we find that the
complainant has failed to show that S1's action (�throwing� a tray of
mail unto her sorting case while she was standing nearby) constituted
an adverse action within the meaning of Title VII.
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Department of Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995) (allegations that on one occasion
supervisor threw a file on complainant's desk and berated her in a loud
voice in the presence of other employees, causing her embarrassment and
humiliation, insufficient to state a harassment claim).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,
1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
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, 510 U.S. at 23.
Here, it is undisputed that S1 moved the tray to the complainant's
sorting case. In S1's affidavit he states that he �tossed� the tray about
[one] �1 foot,� and that the complainant was standing to the right of
the case, while the complainant alleged that he �threw a tray of mail
at the case I was walking back to.� We find neither statement of the
incident sufficient to show that a reasonable person would feel the one
time incident was physically threatening or severe enough so as to create
a hostile work environment. Banks, EEOC Request No. 05940481.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), 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 the complainant failed to
establish a prima facie case of reprisal discrimination because she failed
to show that the S1's action constituted an adverse action. Further,
the Commission agrees with the agency that the complainant failed to show
that the action was severe or pervasive enough to create a hostile work
environment and that she failed to show that a reasonable person would
have felt that the situation was intolerable enough to resign and have
that resignation deemed a constructive discharge.
Therefore, after a careful review of the record, including the
complainant's contentions on appeal, and the agency's response we affirm
the agency's FAD dated February 23, 2000.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 10, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
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 We note that on appeal, the complainant states that she spoke to the
Investigator by telephone several times and that he told her he did not
know if he would get to her case before S1 retired. The complainant
further states that she �felt that this should be investigated by an
outside source but didn't know what to do.� We find the complainant's
explanation of her failure to submit her affidavit to the EEO Investigator
unpersuasive. However, for purposes of analysis, we shall consider the
affidavit.