Tonya G. Hill, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionJan 13, 2000
01980692 (E.E.O.C. Jan. 13, 2000)

01980692

01-13-2000

Tonya G. Hill, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Tonya G. Hill v. United States Postal Service

01980692

January 13, 2000

.

Tonya G. Hill,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Pacific/Western Region),

Agency.

Appeal No. 01980692

Agency No. 4F7920006397

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) concerning her complaint of unlawful employment

discrimination on the bases of race (Caucasian), national origin

(American), color (White), religion (Christian), sex (female), 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> The appeal

is accepted in accordance with EEOC Order No. 960.001. For the following

reasons, the Commission AFFIRMS the FAD as CLARIFIED.

The record reveals that during the relevant time, complainant was

employed as a Letter Carrier at the agency's Hesperia, California postal

facility. Complainant claims that she was discriminated against and

harassed as evidenced by the following incidents: (1) she was singled

out and subjected to an unwarranted discussion by the Postmaster (PM)

regarding comments she made during a stand up on October 26, 1996, which

in turn resulted in a seven day suspension issued on November 25, 1996;

and (2) on December 3, 1996, PM spoke to her in a threatening, angry, and

hostile manner, jerked her chair and pulled her hair, called the police,

and issued her an unwarranted fourteen day suspension on January 3, 1997.

Believing she was a victim of discrimination regarding each incident,

complainant sought EEO counseling and, subsequently, filed formal

complaints. At the conclusion of the investigation, the agency issued

its FAD finding no discrimination. Complainant makes no new contentions

on appeal, and the agency requests that we affirm its FAD.

The FAD concluded that complainant failed to establish a prima facie

case of race, color, religion, or national origin discrimination because

she failed to demonstrate that similarly situated employees (i.e. those

who were disciplined for unacceptable conduct and failure to follow

instructions) not in her protected classes were treated more favorably

under similar circumstances. The FAD also determined that complainant

failed to establish a prima facie case of reprisal because she produced

no evidence to demonstrate a causal nexus between the incidents at issue

and her prior protected activity. Notwithstanding these determinations,

the FAD additionally found that the agency articulated legitimate

nondiscriminatory reasons for its actions in both incidents, namely

that complainant was disrespectful, very loud and disruptive and that

she refused to follow PM's instructions to return to work. The FAD then

found that complainant failed to produce any evidence to show that these

reasons were pretext for discrimination.

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 Douglasto retaliation

cases), the Commission agrees with the agency that complainant failed to

establish a prima facie case of discrimination or reprisal because she

submits only assertions and conjecture to support her claims, presenting

no credible evidence from which to infer that any of PM's actions were the

result of discriminatory or retaliatory animus towards her. In reaching

this conclusion, we note that complainant's accounts of PM engaging in

verbal or physical hostile conduct toward her are completely unsupported

by witness affidavits, but that her own inappropriate conduct and failure

to follow directions is fully supported by the record. We note also that

the record shows that management was willing to enter into discussions

with the union to reduce both suspensions at issue, but that complainant,

a union steward, refused.

Complainant also claims that both incidents constitute harassment. The

agency failed to provide an analysis of this harassment claim, so we

will address it here, and CLARIFY the FAD accordingly.

In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57 (1986), that harassment is actionable if it is sufficiently

severe or pervasive as to result in an alteration of the conditions of

the complainant's employment. EEOC Notice No. 915.002 (March 8, 1994),

Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. See also

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997); Jackson v. U.S. Postal Service, Appeal No. 01972555 (April 15,

1999). In applying these legal standards to the facts of this case,

the Commission finds that complainant has failed to establish that she

was subjected to harassment based on her protected classes which was

sufficiently severe or pervasive so as to constitute a hostile work

environment. As noted, the record shows that PM did not engage in

hostile or threatening conduct. Moreover, [PAGE 3] we find that PM's

discussions with complainant, his instructions to her to return to work,

and the subsequent issuance of both suspensions, were all warranted by her

conduct, and not designed to harass complainant. Furthermore, we find that

all of these actions fell within PM's supervisory duties and were carried

out in a manner authorized by postal service regulations and guidelines.

Therefore, after a careful review of the record, including complainant's

contentions, as well as arguments and evidence not specifically addressed

in this decision, we AFFIRM the FAD as CLARIFIED.

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). [PAGE 4]

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

January 13, 2000

__________________

Date

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

______________________________

1On 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.