Tranclie Adams, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.

Equal Employment Opportunity CommissionSep 18, 2000
01976860 (E.E.O.C. Sep. 18, 2000)

01976860

09-18-2000

Tranclie Adams, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.


Tranclie Adams v. United States Postal Service

01976860

September 18, 2000

Tranclie Adams, )

Complainant, )

) Appeal No. 01976860

v. ) Agency No. 1D-277-1015-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Allegheny/Mid-Atlantic), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaints of unlawful employment discrimination on the

bases of sex (female), and physical disability (neck/back problems;

wrist/arm pain), in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq., and the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1> In her first

complaint, complainant alleged she was discriminated against on the

basis of her disability when, on August 1, 1996, she was terminated for:

(1) failure to maintain a satisfactory attendance record, and; (2)

for failure to work a five-day work week. In her second complaint,

complainant alleged she was subjected to sexual harassment when she

refused to have sex with a Manager at a motel and was later terminated.

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

agency's decision is AFFIRMED.

The record reveals that during the relevant time, complainant was

employed as a Transitional Data Conversion Operator, at the agency's

Remote Encoding Center, Greensboro, North Carolina. When a Transitional

Employee has a break in service, he or she is evaluated in order to

determine whether the employee should be reappointed for another term.

The Remote Encoding Center Manager (female, no disability) has the final

word on the appointments.

Complainant averred in her affidavit that when she was hired in June 1994,

she worked a five day work week. When she began to suffer work related

problems to her wrists and neck, she submitted medical documentation

supporting her inability to work five days straight per week. Complainant

averred she was not told this schedule was a problem.

The record reveals that at some point between 1995 and 1996, the

agency's facility instituted a requirement that all employees work a

five day work week. The record contains requests for complainant's

medical documentation to support her continued light duty for a four

day work week. In July 1996, complainant's supervisor recommended that

complainant not be reappointed due to attendance and performance problems.

Specifically, she states that complainant took frequent absences,

was away from her computer often, and did not maintain a satisfactory

key speed. The Remote Encoding Center Operations Manager (male) (M1)

averred in his affidavit that he was instructed by another Remote

Encoding Center Manager (M2) (female) to terminate complainant based

upon her poor attendance and inability to work a five day work week.

He testified complainant never worked a five day work week during her

employ with the agency. M2 decided to terminate complainant because

complainant failed to maintain a satisfactory attendance record and

because �she was unable to perform the full duties of the position in

that she was unable to work the full five day week nor was she available

for overtime.� Report of Investigation (ROI) at p. 78.

Complainant testified that M2 supported the termination because she

believed complainant could not work a five-day work week and also because

she incurred sixteen unscheduled absences. Also, complainant alleged

that M1 asked her to go to Charlotte, North Carolina for a business

meeting and stay with him for sexual reasons. Complainant testified she

refused to go, and was later terminated. She alleged M1 constantly made

lewd remarks and stared at her.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed formal complaints on December 4, 1996.

The complaints were consolidated for investigation. At the conclusion

of the investigation, complainant requested that the agency issue a

final agency decision.

The FAD concluded that complainant failed to establish a prima facie

case of disability discrimination because she presented insufficient

evidence that she suffered from a physical or mental impairment which

substantially limited the major life activity of working. The agency

maintained in its FAD that its most recent medical documentation

revealed that complainant was only restricted from working overtime,

and that her health would not be adversely affected if she worked five

days per week. The agency also found complainant had not shown she was

substantially limited in any other major life activity. The agency also

found complainant was not regarded as disabled, as management officials

were not aware complainant suffered from a disability.

With respect to complainant's claim of sexual harassment, the agency

found complainant failed to establish a prima facie case because she

failed to prove the action occurred as alleged. The agency noted that

complainant failed to prove any nexus between the alleged event and her

termination because the Manager who allegedly harassed complainant was

not responsible for the termination.

The agency also found it articulated legitimate, nondiscriminatory

reasons for her termination, namely, the Manager of the Remote Encoding

Center testified that complainant was terminated from her employment

for excessive unscheduled absences and for failure to work a five-day

work week. The agency also found that although management had requested

complainant to provide medical documentation to support her absences,

she failed to provide any. In sum, the agency found complainant

failed to prove the agency's reasons for its actions were a pretext for

discrimination.

Complainant makes no new contentions on appeal, and the agency asks that

we affirm the FAD.

In order to establish a claim of sexual harassment, complainant must

show that: (1) she belongs to a statutorily protected class; (2) she

was subjected to unwelcome conduct related to her gender, including

sexual advances, requests for favors, or other verbal or physical

conduct of a sexual nature; (3) the harassment complained of was based

on sex; (4) the harassment had the purpose or effect of unreasonably

interfering with her work performance and/or creating an intimidating,

hostile, or offensive work environment; and (5) there is a basis for

imputing liability to the employer. See Henson v. City of Dundee, 682

F.2d 897 (11th Cir. 1982). The harasser's 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).

After a careful review of the record, we agree with the agency that

complainant failed to establish a prima facie case of sexual harassment

because she failed to show that the event occurred as alleged. We find

that complainant's testimony in this regard lacked specificity and, after

considering the manager's testimony, we find complainant's testimony was

largely not credible. Rather, we find that the evidence overwhelmingly

supports the Manager's testimony that he did not request that complainant

go to a motel room with him. We credit the Manager's testimony that

complainant's termination was not the result of her refusal to submit

to his alleged advances, but was rather the result of her attendance

and performance problems.

After a careful review of the record, based on McDonnell Douglas v. Green,

411 U.S. 792 (1973), and Prewitt v. United States Postal Service, 662

F.2d 292 (5th Cir. 1981), the Commission also agrees with the agency

that complainant failed to establish a prima facie case of disability

discrimination because she failed to prove that she has a physical

or mental impairment that substantially limits a major life activity.

See 29 C.F.R. � 1630.2(g). Although the record shows complainant sought

medical treatment for neck, wrist and back pain, she does not provide

any evidence as to how these conditions substantially limit a major

life activity. For instance, medical documentation in the record report

that complainant suffers from neck pain caused by prolonged keyboarding.

Further, complainant reportedly suffered from numbness in her hand.

She did report improvement with rest and medication. Likewise,

complainant failed to show she has a record of a disability, or that

the agency regarded her as an individual with a disability.

Even assuming complainant established a prima facie case of intentional

disability discrimination, the record reveals that when complainant began

working for the facility, she was initially restricted to working only

four days per week. Evidence in the record during the relevant time

period, however, shows that complainant was released to work five days

per week on July 17, 1996. However, complainant failed to timely produce

such documentation when the agency requested, and she was terminated from

the position since it required that complainant work five days per week.

In addition, complainant was terminated due to performance and attendance

problems.<2>

The Commission finds that complainant failed to present evidence that

more likely than not, the agency's articulated reasons for its actions

were a pretext for discrimination. In reaching this conclusion, we note

that complainant incurred a substantial amount of unscheduled absences,

which the agency relied upon, in part, for her dismissal. Most of

these absences were close in proximity to her scheduled days off.

Complainant also failed to show that the agency's criticism of her

performance was a pretext for discrimination. In sum, complainant has

not proven, by a preponderance of the evidence, that the agency's reasons

for its actions were pretext for discrimination.

Therefore, after a careful review of the record, including arguments and

evidence not specifically addressed in this decision, we AFFIRM the FAD.

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

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:

September 18, 2000 _________________________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat

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.

2A fair reading of the complaint indicates complainant may have also

alleged that the agency denied her an accommodation for her alleged

disability by not permitting her to work a shorter work week, if she

so desired. In light of her failure to establish that has a disability,

we need not address the accommodation issue.