0120070762
03-10-2009
Velma S. Bunkley-Claybrooks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Velma S. Bunkley-Claybrooks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070762
Hearing No. 210-2006-0055X
Agency No. 4J000000105
DECISION
On November 22, 2006, complainant filed an appeal from the agency's
October 4, 2006 final decision concerning her equal employment opportunity
(EEO) complaint alleging 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. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final decision.1
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an EEO Appeal Review Specialist at the agency's Great Lakes Area
Office in Bloomingdale, Illinois. The record reveals on September 4,
2004, complainant suffered a serious illness because of a food poisoning
incident, which caused her to be out of work until the summer of 2005.
During this time, complainant also suffered from breathing problems
and neuropathy. There is no dispute that the agency was aware that
complainant suffered from an illness during this time and that she also
suffered from anxiety and depression. There is also no dispute that the
agency was aware of complainant's prior EEO activities. Complainant is
no longer employed by the agency.
In a formal EEO complaint dated June 15, 2005, and subsequently amended,
complainant alleged that she was discriminated against on the bases of
race (African-American), sex (female), color (medium brown), disability
(neuropathy, anxiety and depression), age (2/49), and in reprisal for
prior protected EEO activity when:
1. on January 21, 2005, her Labor Relations Detail was terminated;
2. on July 11, 2005, she was not cleared to work;
3. on July 14 and 15, 2005, she was placed on Administrative Leave;
and
4. by letter dated July 15, 2005, she was notified that on July 27,
2005, she was scheduled to attend a Fitness for Duty (FFD) Examination.
Complainant also raised the following issues, but on June 29, 2005,
the agency dismissed them for failure to state a claim:
5. from October 21, 2004 through November 14, 2004, she was requested
to produce accomplishments for her PFP (Pay for Performance);
6. on October 21, 2004, her request for advanced sick leave was
denied;
7. on December 6, 2004, her request for donated leave was denied.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing. By Order dated August 3, 2006, the AJ reinstated
the dismissed issues because she found that considered properly as
a claim of harassment, they stated a claim upon which relief could
be granted. However, on August 15, 2006, the AJ denied the hearing
request on the grounds that complainant failed to timely respond to
pre-hearing submissions and the agency's Motion for Summary Judgment.
The AJ remanded the complaint to the agency, and the agency issued
a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision
concluded that complainant failed to prove that she was subjected to
discrimination as alleged. As for the dismissed issues, the agency
found that its original decision to dismiss the issues was correct.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency failed to consider the
claim as a hostile work environment claim, and failed to investigate the
dismissed claims. She argues that she is an individual with a disability
because she was totally incapacitated following her illness, and was
harassed because of her prior EEO activity and other protected bases.
The agency did not respond to complainant's appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will 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
[and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17
(1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment. 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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
As an initial matter, we agree with complainant that the agency should
have investigated the dismissed issues after the AJ's remand of the case.
However, we also note that the AJ did, in fact, order the agency to
submit documentation supporting its claim that complainant's claims
were moot because she had been provided the leave. Indeed, evidence
was submitted to establish that complainant was approved for advanced
leave, and that her request to receive donated leave was also approved.
(See Agency's Response to Order, July 10, 2006).
After a review of the record, and assuming arguendo that complainant is
an individual with a disability, we find that complainant has not proven
that it is more likely than not that she was subjected to harassment
because of her race, color, sex, disability, age, or prior EEO activity.
Complainant's claim of harassment involves allegations of her mistreatment
during and after her illness. The record reveals complainant had been
detailed to a Labor Relations Specialist position, and claims she was
terminated from the detail. However, the record reveals complainant's
detail ended on the agreed upon date, even though complainant was not
working at the time. The record also reveals that complainant was placed
on administrative leave and asked to undergo a FFD exam because she had
not provided sufficient medical documentation supporting her light-duty
request upon her return to work. Generally, a disability-related inquiry
or medical examination of an employee may be "job-related and consistent
with business necessity" when an employer "has a reasonable belief,
based on objective evidence, that: (1) an employee's ability to perform
essential job functions will be impaired by a medical condition; or
(2) an employee will pose a direct threat due to a medical condition."
EEOC Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act,
No. 915.002 at 15-16 (July 26, 2000). It is the burden of the employer to
show that its disability-related inquiries and requests for examination
are job-related and consistent with business necessity. Id. at 15 - 23.
Here, we find that the agency's inquiry, which was made in response to a
light-duty request, was appropriate because complainant did not provide
specific information about her restrictions. Although complainant
alleged she was not approved to work in July 2005, the record reveals
that she was in fact approved to return to work on July 11, 2005, after
submitting appropriate medical documentation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision.
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
March 10, 2009
Date
1 The record reveals complainant received the agency's final decision
on October 24, 2006. Accordingly, her appeal is deemed timely filed.
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0120070762
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070762