Teawona Lee, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 21, 2009
0120091619 (E.E.O.C. May. 21, 2009)

0120091619

05-21-2009

Teawona Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Teawona Lee,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091619

Agency No. 4J-604-0001-08

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's January 20, 2009 final decision concerning

her equal employment opportunity (EEO) complaint claiming 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., Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.

On January 4, 2008, complainant filed the instant formal complaint.

Therein, complainant claimed that she was the victim of unlawful

employment discrimination on the bases of race (African-American), sex

(female), color (black), disability (migraines, carpel tunnel syndrome,

right thumb, CMEJ Daw/Synovitis), and age (over 40) when:

she has been subjected to discriminatory harassment on a daily basis,

including being continuously "nit-picked;" every move she makes is

watched and questioned; her hours have been changed daily; and on

September 12, 2007, she was questioned about the length of time she

spent in a restaurant where she had gone to use the restroom.

After the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

On December 8, 2008, the AJ issued an order, dismissing the formal

complaint from the hearing process. In his Order, the AJ concluded that

because complainant failed to show cause for her failure to adequately

respond to the agency's discovery request and her failure to cooperate

with discovery, file timely pre-hearing submissions and follow the

AJ's orders, he remanded the case to the agency for issuance of a final

decision. Therefore, the agency issued the instant final decision on

January 20, 2009.

In its January 20, 2009 final decision, the agency found no

discrimination.1 Specifically, the agency found that complainant did not

establish a prima facie case of race, sex, color and age discrimination.

Regarding the basis of disability, the agency found that complainant

failed to establish a prima facie case of disability discrimination

because she failed to show that she was substantially limited in a major

life activity. The agency concluded that complainant failed to show

that she was a qualified individual with a disability as defined by the

Rehabilitation Act. The agency further found that assuming, arguendo,

that complainant established a prima facie case of race, sex, color,

disability and age discrimination, management articulated legitimate,

nondiscriminatory reasons for its actions which complainant failed to

show were a pretext. 2

Regarding the harassment claim, the agency found that the evidence in

the record did not establish that complainant was subjected to harassment

based on prior protected activity. Specifically, the agency found that

the alleged harassment was insufficiently severe or pervasive so as to

create a hostile work environment.

The Postmaster (PM) denied subjected complainant to harassment by

nit-picking on complainant; or by watching and questioning her actions on

a daily basis. PM further stated that as a Postmaster, he reviews "the

TACS printout of all employees. When there is a question, I do question

the supervisors. The supervisor may go to the employee and ask questions,

but that is up to the supervisor. I expect the supervisor to review

the assigned employees under them on a daily basis and to ensure the

employee is making accurate and timely moves in the system." PM stated

that complainant "is not watched any differently than all employees.

I do have to remark that injured employees are watched closed to ensure

they stay within the medical restrictions and stay productive within

those restrictions."

PM stated while he was unaware of any mental disability, he was aware

of complainant's work-related injury that has placed certain work

restrictions on her. PM stated that in regard to complainant's claim that

her hours were being changed daily, complainant filed three grievances and

the union "dismissed the statements by [complainant] regarding harassment

and Stress, daily changing of hours and to whom she reports. . .."

PM stated that he agreed to keep complainant's reporting time at 9:00 a.m.

PM stated that a review of TACS printouts from February through December

2007, reflected that on most days complainant was later for work; that

her starting time had been 9:00 a.m. for some time, except from April

18, 2007 to July 7, 2007, when she had an 8:30 a.m. reporting time,

and there has not been a daily change in reporting time. PM noted

that complainant wanted a 7:30 a.m. reporting time; however, the agency

did not agree to this.

Further, PM stated that on September 12, 2007, he saw complainant "at a

local restaurant at around 12:20 pm. [Complainant] was standing in line

to pick up food. She had apparently been there long enough to order food.

I did say hello to her as she passed me with a bag of food. This was

not an authorized lunch location for her." PM stated that complainant

"was not at the restroom. In this restaurant, the restroom would

be over 50 feet from [complainant] and behind where I was standing."

PM stated that when he arrived to the office around 1:00 p.m., he asked

complainant's supervisor (S1) if she was authorized to be at the local

restaurant and S1 stated "'no' and that he was going to check with

[complainant] about it. I left it in his hands."

S1 stated "I have never witnessed or have ever taken part in any

'nit picking', of [complainant] as mentioned in this question. I do,

however, ask [complainant] on occasion, possibly one or two times a

week, if she was given copies of the customer pick-ups for that day."

S1 further stated that during the relevant time, complainant has not

made a claim of harassment with him or his staff.

Supervisor Customer Supervisor, also complainant's supervisor (S2),

stated that complainant was assigned to her unit in August 2007 and her

reporting time was 9:00 a.m. Specifically, S2 stated that she was not

aware of complainant's hours being changed on a daily basis and that

her reporting time was 9:00 a.m. S2 further stated that because she,

S2, reports to work at 11:00 a.m., she had "very little" interaction

with complainant. S2 stated that during the relevant time, she was

"unaware of [nit] picking . . . everyone is treated equally by me."

S2 stated "if you do something wrong it should be questioned and it's

unfortunate if the complainant things she is being targeted." S2 stated

that the only time she questioned complainant was "if there is a problem

with a duty she performed (which is rarely) or for her clock ring errors,

not punching in or clocking in and not filing out a 3971."

S2 stated that she tried to intervene concerning the September 12,

2007 incident but complainant "did not want to talk or had problems

and made allegations against the male supervisor at the time [S1]."

With respect to complainant's harassment allegation, S2 stated that

complainant "alleged she had been harassed for many years."

On appeal, complainant contends there are no authorized stops while doing

Express Mail. Complainant further states "once I finished the last on

in the 14th hundred blocked in Wenonah I went to a restaurant to use

the bathroom rather it was a authorize stop or not. I get a 10 min[ute]

break and a lunch. I don't need to get approval to go to the washroom

when I was in the area where a rest room was available."

Disparate Treatment

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The agency articulated legitimate, nondiscriminatory reasons for its

actions. Complainant has not demonstrated that these reasons were a

pretext for discrimination.

Harassment

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. Wibstad

v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,

1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997). It is also well-settled that harassment based on an

individual's prior EEO activity is actionable. Roberts v. Department

of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).

A single incident or group of isolated incidents will generally not

be regarded as discriminatory harassment unless the conduct is severe.

Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether

the harassment is sufficiently severe to trigger a violation of Title

VII 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.

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. The harassers' conduct should be evaluated

from the objective viewpoint of a reasonable person in the victim's

circumstances. Enforcement Guidance on Harris v. Forklift Systems,

Inc., EEOC Notice No. 915.002 (March 8, 1994).

In the instant case, we find that the incidents complained of, even if

true, do not rise to the level of a hostile work environment.

As an initial matter, we find that complainant, on appeal, has not

provided any persuasive argument regarding the propriety of the agency's

finding of no discrimination. The Commission determines that the agency

conducted a thorough investigation.

Therefore, after a review of the record in its entirety, including

consideration of all statements on appeal, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the agency's final

decision because the preponderance of the evidence of record does not

establish that discrimination occurred.3

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court

that the Court appoint an attorney to represent you and that the Court

also 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 with the Court 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 21, 2009

__________________

Date

1 In its final decision, the agency noted that the instant formal

complaint included additional claims of discriminatory harassment before

August 17, 2007. The agency stated that in its January 15, 2008 partial

dismissal, the additional claims were dismissed on the grounds for

untimely EEO Counselor contact. The agency stated, however, that the

January 15, 2008 partial dismissal is "herein endorsed and incorporated

by reference for the purpose of the instant final decision."

2 The Commission presumes for purposes of analysis only, and without so

finding, that complainant is an individual with a disability.

3 On appeal, complainant does not challenge an agency January 15, 2008

partial dismissal regarding another claim (that she was discriminated

against on the bases of race, sex, color, disability and age when since

on or about 2004 to August 16, 2007, she was subjected to discriminatory

harassment on a daily basis, including being "continuously [nit] pick;"

every move she makes is watched and questioned; and her hours have been

changed daily). Therefore, we have not addressed this issue in our

decision.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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