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.