Sherry L. Smith-Woodring, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 31, 2006
01a5558001a60947 (E.E.O.C. Jul. 31, 2006)

01a5558001a60947

07-31-2006

Sherry L. Smith-Woodring, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sherry L. Smith-Woodring,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal Nos. 01A55850, 01A60947

Hearing No. 350-2004-00046X

Agency Nos. 4F-852-0065-03, 4F-852-0150-03, 4F-852-0073-05

DECISION

Complainant filed timely appeals with this Commission from agency decisions

dated August 4, 2005, and October 12, 2005, regarding her complaints of

employment discrimination in violation of Title VII of the Civil Rights Act

of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501

of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq. Pursuant to 29 C.F.R. � 1614.606, upon review, the

Commission consolidated complainant's complaints for processing.

BACKGROUND

During the relevant period, complainant was employed as a General Clerk at

an agency facility in Phoenix, Arizona. On January 10, 2003, complainant

initiated contact with an EEO Counselor, and on May 30, 2003, she filed a

formal complaint (Complaint 1) alleging that (1) she was subjected to

discrimination on the bases of disability (shoulder pain and depression)

and reprisal for prior protected EEO activity when:

(a) on November 20, 2002, she was denied Sick Leave Dependent Care

(SLDC);

(b) on December 9, 2002, management made her stay on overtime for a

Fact-Finding;

(c) on December 17, 2002, management gave her a discussion on WIN SSI;

(d) on January 9, 2003, management told her that she was going to be

moved from Ahwatukee Station;

(e) on January 13 and 17, 2003, she spoke with management concerning a

pay adjustment for overtime she was due and management has not

completed the necessary paperwork for payment.

Subsequently, on August 22, 2003, complainant initiated contact with an EEO

Counselor, and filed a formal complaint (Complaint 2) dated October 16,

2003, alleging that (2) she was subjected to a hostile work environment on

the bases of disability (shoulder pain and depression) and reprisal for

prior protected EEO activity when:

(a) on an unspecified date, her leave request for March 12 through

March 21, 2003 was denied;

(b) on April 9, 2003, her leave request for forty hours of Annual

Leave (A/L) was denied;

(c) around May 12, 2003, her verbal request to change Prime Time leave

scheduled for May 26 through May 30, 2003 to one day of leave was

refused;

(d) on August 21, 2003, she was accused of lying and misrepresentation

on a leave slip;

(e) on August 22, 2003, her request to convert 112 hours of A/L (March

12 through March 31, 2003) to Leave Without Pay (LWOP) was denied, and

she was accused of petty actions;

(f) on August 26, 2003, she was told repeatedly in an aggressive tone

to get off the clock and the supervisor refused to sign a leave slip;

and

(g) on August 20, 2003, her request to convert A/L taken March 21

through March 31, 2003 to Court Leave was denied.[1]

At the time of events giving rise to the third complaint, complainant

worked as a Sales Service/Distribution Associate at an agency facility in

Phoenix, Arizona. On March 9, 2005, complainant initiated contact with an

EEO Counselor alleging that (3) the agency subjected her to a hostile work

environment on the bases of disability (shoulder pain and depression) and

reprisal for prior protected EEO activity when:

(a) on February 3, 2005, a supervisor (S1) denied complainant's

request for leave as untimely;

(b) on February 4, 2005, complainant's duty hours were changed;

(c) on February 8, April 11, 13, and 28, 2005, S1 refused to meet

with complainant on Step 1 grievance;

(d) on February 15, 2005, S1 approached complainant while she was

talking to a co-worker and asked her if she was off the clock;

(e) on February 16, 2005, S1 agreed to meet with complainant on Step

1 grievance, but only if another manager was present as a

witness;

(f) on February 16, 2005, S1 gave direct order to complainant to

call a specific number to report absence;

(g) on February 18, 2005, complainant was denied IOD LWOP;

(h) on February 24, 2005, S1 refused to input time for February 22

absence;

(i) on February 24, 2005, S1 gave complainant a direct order to

report to window at 0900 and on May 17, 2005, she was again

ordered to be on window between 0900 and 1030 every morning;

(j) on February 25, 2005, complainant was told to only give leave

slips to S1;

(k) on March 1, 2005, complainant was chastised for not being at the

window at 0900;

(l) on March 2, 2005, complainant received copies of leave slips for

February 25, 2005 stating that they were approved pending

documentation, but complainant had not previously been given

notification of such a requirement;

(m) on March 7, 2005, complainant was asked to read and sign stand

up form. S1 approached complainant while she was on the phone

and wrote her a note telling her to "get back to the window

ASAP;"

(n) on March 8, 10, 14 and 17, 2005, complainant's requests for

official EEO time were denied or modified;

(o) on March 9, 2005, complainant was told to provide documentation

for each day off for chronic pain;

(p) on March 9, 10, 28 and April 14, 2005, complainant was denied

access to supervisor's office;

(q) on March 10, 2005, complainant was denied request for a PS Form

3972 to verify leave had been input correctly; and

(r) on March 21, 2005, complainant was yelled at by S1 and told to

report to window everyday after lunch unless on a special

project.

Subsequently, complainant filed a formal complaint (Complaint 3) alleging

hostile work environment harassment, but did not list the incidents alleged

in the pre-complaint.

On June 23, 2003, the agency issued a Partial Acceptance/Dismissal in which

it dismissed incident (1)(a) for untimely EEO contact and incidents (1)(c)

and (d) for failure to state a claim. In a Partial Acceptance/Dismissal

dated October 30, 2003, the agency dismissed incidents (2)(a) through

(2)(c) for untimely EEO contact. However, the dismissals are not indicated

in the final actions.[2]

Regarding Complaints 1 and 2, at the conclusion of the investigations,

complainant elected to request a hearing before an EEOC Administrative

Judge (AJ). The AJ consolidated the complaints and issued a decision

without a hearing on June 21, 2005. The AJ found that complainant failed

to show that the legitimate nondiscriminatory reasons articulated by the

agency for its actions were pretext, or that the actions as alleged rose to

the level of a hostile work environment. On August 4, 2005, the agency

issued a Final Action, fully implementing the AJ's finding that complainant

failed to prove that she was subjected to discrimination as alleged. The

instant appeal, docketed as EEOC Appeal No. 01A55850, followed.

On appeal, complainant argues that the AJ erred in issuing a summary

judgment decision as there were genuine issues of material fact.

Additionally, complainant argues that the agency improperly dismissed

several claims. The agency requests we affirm its notice of final action.

Regarding Complaint 3, in a final agency decision (FAD) dated October 12,

2005, the agency dismissed incident (3)(b) on the ground of untimely EEO

contact and incidents (3)(a) and (c) through (r) for failure to state a

claim.

ANALYSIS

COMPLAINTS 1 AND 2

In rendering this appellate decision, regarding complaints 1 and 2, we must

scrutinize the AJ's legal and factual conclusions, and the agency's final

order adopting them, de novo. See 29 C.F.R. � 1614.405(a).

First, we must determine whether it was appropriate for the AJ to issue a

decision without a hearing on the record. The Commission's regulations

allow an AJ to issue a decision without a hearing when he or she finds that

there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This

regulation is patterned after the summary judgment procedure set forth in

Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court

has held that summary judgment is appropriate where a court determines

that, given the substantive legal and evidentiary standards that apply to

the case, there exists no genuine issue of material fact. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for

summary judgment, a court's function is not to weigh the evidence but

rather to determine whether there are genuine issues for trial. Id. at

249. The evidence of the non-moving party must be believed at the summary

judgment stage and all justifiable inferences must be drawn in the non-

moving party's favor. Id. at 255. An issue of fact is "genuine" if the

evidence is such that a reasonable fact finder could find in favor of the

non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver

v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is

"material" if it has the potential to affect the outcome of the case. If a

case can only be resolved by weighing conflicting evidence, summary

judgment is not appropriate. After a careful review of the record, the

Commission finds that the issuance of a decision without a hearing was

appropriate.

Next, we conclude that through all of the incidents alleged in Complaints 1

and 2, complainant essentially alleged a discriminatory hostile work

environment, and we must determine if such is the case. The agency

dismissed incidents (1)(a) and (2)(a) through (2)(c) on the ground of

untimely EEO contact, pursuant to 29 C.F.R. � 1614.105(1), which states

that an aggrieved person must initiate contact with a Counselor within 45

days of the date of the matter alleged to be discriminatory.

The record discloses that, the complainant first sought EEO counseling on

January 10, 2003, in reference to incident (1)(a), which was six days

beyond the 45-day limitation period. The record further discloses that

complainant first sought EEO Counseling on August 22, 2003, in reference to

incidents (2)(a) through (2)(c), which was at least 125 days beyond the 45-

day limitation period. However, the Supreme Court has held that a

complainant alleging a hostile work environment will not be time barred if

all acts constituting the claim are part of the same unlawful practice and

at least one act falls within the filing period. See National Railroad

Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court

further held, however, that "discrete discriminatory acts are not

actionable if time barred, even when they are related to acts alleged in

timely filed charges." Id. Finally, the Court held that such untimely

discrete acts may be used as background evidence in support of a timely

claim. Id. We find that the agency properly dismissed incidents (1)(a) and

(2)(a) through (2)(c) as independent claims on the ground of untimely EEO

contact because the raised incidents were "discrete acts" that fall outside

the filing period, but they may be considered as evidence to support

complainant's harassment claim.

As to incidents (1)(c) and (1)(d), we find that they were improperly

dismissed by the agency for failure to state a claim. EEOC Regulation 29

C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall

dismiss a complaint that fails to state a claim. The Commission has held

that where a complainant does not challenge an agency action or inaction

regarding a specific term, condition or privilege of employment, the claim

may survive as evidence of harassment if it is sufficiently severe or

pervasive to alter the conditions of the complainant's employment. See

Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Whether the

harassment is sufficiently severe to trigger a violation of EEO statutes

must be determined by looking at all of the circumstances, including 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.

Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.

915.002 (March 8, 1994). The Commission finds that complainant has not

alleged a personal loss or harm regarding a term, condition, or privilege

of her employment but has alleged actions that could rise to the level of a

hostile work environment, when not fragmented and considered with the other

actions alleged.

Regarding complainant's claims of harassment alleged in Complaints (1) and

(2), we find that complainant failed to prove a hostile work environment.

To establish a prima facie case of hostile environment harassment, a

complainant must show that: (1) she is a member of 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 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.

See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238

(October 16, 1998). 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. at 21; see also Oncale v. Sundowner Offshore Services, Inc.,

23 U.S. 75 (1998). In the case of harassment by a supervisor, complainant

must also show that there is a basis for imputing liability to the

employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). We

find that complainant has not shown that the agency actions alleged rose to

the level of a hostile work environment or were motivated by discriminatory

or retaliatory animus.

After a review of the record in its entirety, including consideration of

all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final order,

because the Administrative Judge's issuance of a decision without a hearing

was appropriate and a preponderance of the record evidence does not

establish that discrimination occurred. Complainant failed to show that

the agency's actions were based upon discriminatory or retaliatory motives.

COMPLAINT 3

Regarding Claim 3, based on the aforementioned standard, the Commission

finds that the agency properly dismissed incidents (3)(a) and (3)(c)

through (3)(r) for failure to state a claim. Complainant failed to show

that the incidents as alleged were sufficiently severe or persuasive to

state an actionable claim of harassment. See Harris v. Forklift Systems,

Inc., 510 U.S. at 23. Further, upon review of the record, the Commission

finds that the agency properly dismissed incident (3)(b) on the ground of

untimely EEO contact because the raised incident was a "discrete act" that

falls outside the filing period and there is no viable harassment claim for

it to support. Morgan, supra.

CONCLUSION

Accordingly, after careful review of the record and evidence not

specifically addressed in this decision, both the final order finding no

discrimination in Complaints 1 and 2 and the agency's final decision

dismissing Complaint 3 for failure to state a claim and untimely EEO

contact are 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 tends 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

July 31, 2006

__________________

Date

-----------------------

[1] We note that, in the Partial Acceptance/Dismissal and formal complaint

incident (2)(d) is said to have occurred on August 21, 2003 while the FAD

and AJ decision states that it occurred on August 31, 2003. Also, in the

FAD and AJ decision, incident (2)(g) is stated to have occurred on August

27 while the formal complaint states said events occurred on August 20,

2003.

[2] We note, pursuant to 29 C.F.R. � 1614.110, the agency shall indicate

the rationale for dismissing any claims in the final action.