01a51264
03-31-2006
Waltraud Ammon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Waltraud Ammon v. United States Postal Service
01A51264
03-31-06
.
Waltraud Ammon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51264
Agency No. 4E-800-0543-03
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. For the following reasons, the
Commission affirms the agency's final decision.
ISSUE PRESENTED
Whether Complainant was subjected to a hostile work environment based
on sex (female), race (white), color (white), age (D.O.B. 11/14/47),
retaliation (prior EEO activity), and national origin (German), when:
Complainant was issued Absent Without Leave (AWOL) status; and
Complainant's supervisor wrote a letter on the shared drive stating that
complainant was �snubbing [her] nose at America,� and suggesting that she
should �go back to Germany� where �[t]hey have much more liberal laws
on what [complainant was] trying to pull, and maybe Germany will allow
[her] a fat disability check so [she] can do what [she] want[s].�
BACKGROUND
During the relevant time, complainant was employed at the United
States Postal Service (USPS) at the Colorado Springs office in Colorado.
On March 23, 2003, complainant was injured at work. Complainant contended
that her supervisor refused to take complainant to the emergency room
until two hours after the injury. See Record of Investigation (ROI),
Issues To Be Investigated at 21. The supervisor stated that she asked
complainant if she wanted to go to the hospital, but complainant said
she wanted to wait to see if she felt better. See ROI, Counselor's
Report at 16. Complainant stated that while at the emergency room,
she �felt uncomfortable undressing in front of her supervisor, but the
supervisor would not leave.� See ROI, Issues To Be Investigated at 21.
Complainant contended that the doctor wanted complainant to take
some pain medication, but her supervisor requested that complainant
not be given pain medication so that she could return to work. Id.
Complainant stated that the staff in the emergency room could not locate
Tylenol, and her supervisor offered to provide medication to her. Id.
Complainant explained that her supervisor drove to her home where
she retrieved some pills for complainant. Id. Complainant contended
that she was �in a great deal of pain� and was coerced into going back
to work. Id. The supervisor stated that �she observed [complainant]
pushing A-frames of mail and [complainant] did not say she was in pain.
See ROI, Counselor's Report at 16. Complainant explained that she
returned to the emergency room eight days after the original injury,
where she was diagnosed with broken cartilage and internal bleeding.
See ROI, Issues To Be Investigated at 21.
Complainant further contended that her supervisor never gave her the
paperwork necessary to complete a worker's compensation claim. Id.
The record reflects that complainant did not return to work for two weeks.
Id. The plant manager stated in an affidavit that complainant �did not
call or notify anyone that she was not coming to work. She was put in
for AWOL and her claim for disability was being controverted by the USPS.
If and when her claim was accepted, OWCP would compensate the employee
for the work missed. Management at the Plant does not have the authority
or the approval rights to approve COP [continuation of pay] or any other
[w]orkman's [c]ompensation benefits.� See ROI, Affidavit B at 8.
Complainant contended that when she returned to work, she was cursed
out by her supervisor and physically threatened when her supervisor
backed complainant against a wall and pushed a radio in her face.
See ROI, Issues To Be Investigated at 21. According to complainant, her
supervisor screamed things such as �[y]ou never hurt yourself here and
I am f***ing sick and tired of your games and lies.� See ROI, Issues
to be Investigated at 26. However, complainant's supervisor stated
that �she would bite her tongue before saying something like that on
the workroom floor.� See ROI, Counselor's Report at 16.
The record reflects that complainant's supervisor wrote a letter directed
towards complainant. See ROI, Counselor's Report at 33. Allegedly,
the supervisor was upset with complainant and wrote herself the letter
regarding complainant. See ROI, Affidavit B. The letter was saved on
the shared drive, which is accessible to other employees. The letter
stated that complainant had two choices: �a) come to work as scheduled
and do your job, or b) lose your job. It's up to you.� See ROI,
Exhibit 8 at 1. The letter continued, stating �[n]o one owes you
anything, and no one appreciates having to do your job and their's (sic)
because you're too lazy and self-centered to do yours yourself.� Id.
The letter concluded by stating that �[y]ou're snubbing your nose at
America. My other suggestion is, go back to Germany. They have much
more liberal laws on what you're trying to pull, and maybe Germany will
allow you a fat disability check so you can do what you want.� Id.
The record reflects that as a result of this letter, the plant
manager removed complainant's supervisor as a 204-B over complainant.
See ROI, Affidavit B. The plant manager stated that he �did not allow
[the supervisor] to ever supervise [complainant] again. After [his]
investigation [was] complete[ed], [he] removed [the supervisor] as an
acting supervisor and returned her to her craft position.�<1>
On May 6, 2003, complainant initiated EEO Counselor contact. The record
reflects that complainant filed two pre-complaint documents which
were consolidated by the agency under Agency Case No. 4E-800-0543-03.
Informal efforts to resolve her concerns were unsuccessful. In her
formal complaint dated August 12, 2003, complainant alleged that she was
subjected to discrimination on the bases of race, color, national origin,
sex, age, disability, and in reprisal for prior EEO activity.<2>
A FAD, issued on October 21, 2003, dismissed the complainant's complaint
for failure to state a claim. However, the Commission overruled the
holding because the �agency misdefined complainant's complaint.� Ammon
v. United States Postal Service, EEOC Appeal No. 01A40822 (March 24,
2004). The Commission reasoned that the agency did not properly address
all of the incidents alleged in the complaint. Further, the Commission
held that the complainant's claims during the counseling process, in
conjunction with her related claims on appeal, were sufficient to state
a claim of harassment.
Pursuant to 29 C.F.R. � 1614.108 and the Commission's order, the agency,
within one hundred fifty (150) calendar days of the date of that decision,
March 24, 2004, should have provided complainant with a copy of the
investigative file and notification of complainant's right to request a
hearing and decision from an AJ or an immediate final decision from the
agency pursuant to 29 C.F.R. � 1614.110. Because neither the complainant
nor her attorney requested a hearing for an AJ or an immediate final
decision, the agency issued a final agency decision on the merits.
The FAD found no discrimination.
On appeal, complainant's attorney contends that although she received the
investigative file, she never received proper notification regarding the
right to request a hearing from an AJ. In support of this contention,
complainant's attorney submitted a photograph allegedly of complainant's
investigative file without any letter regarding notification. Complainant
reasserts that she was harassed on the basis of sex (female), race
(caucasian), color (white), age (D.O.B. 11/14/47), retaliation (prior
EEO activity), and national origin (German).<3> The agency requests
that the Commission uphold the FAD.
ANALYSIS AND FINDINGS
At the outset, the Commission notes that the picture taken by
complainant's attorney is of an unidentified file taken several feet away
from the actual file. Moreover, the agency submitted a certified mail
receipt showing that they sent the investigative file and notification,
which was received by complainant's attorney on August 26, 2004. As such,
complainant's attorney received the investigative file and notification
one-hundred-fifty-five (155) calendar days after the decision was issued
and five (5) days after the expiration of the applicable one-hundred-fifty
(150) calendar day deadline. However, the Commission has consistently
held that notification will be deemed timely if it is received by mail
within five (5) days of the expiration of the applicable filing period.
See e.g., Mui v. Department of Navy, EEOC Appeal No. 01A51387 (March 17,
2006) (applying the 5 day extension to requests to reconsider deadlines).
The Commission finds the agency's proof more persuasive than picture of
an unidentified file. Thus, the Commission denies the complainant's
request for a hearing before an administrative judge and will make a
decision at this time.
Pursuant to 29 C.F.R. � 1614.405, the decision on an appeal on an agency's
final action shall be based on a de novo review. After a careful review
of the record, the Commission finds that the FAD should be affirmed.
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 patterned or pervasive. Garretson
v. Department of Veterans Affairs, EEOC Appeal No. 01945351 (April 4,
1996); McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985).
The Commission's Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June
18, 1999) identifies two types of such harassment: (1) harassment that
results in a tangible employment action; and (2) harassment that creates
a hostile work environment. Based on the facts of this case, we will
analyze this matter as both an allegation of harassment that results
in a tangible employment action, as well as harassment that creates a
hostile work environment.
To establish a prima facie case of harassment, complainant must show that:
1) she belongs to a statutorily protected class; 2) she was subjected
to unwelcome behavior related to her membership in one of the protected
classes; 3) the harassment complained of was based on membership in one
of the protected classes; 4) the harassment had the purpose or effect of
unreasonably interfering her work performance and/or were sufficiently
severe or pervasive to create an intimidating, hostile, or offensive
work environment; and 5) there is a basis for imputing liability to
the employer. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999). 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).
As to complainant's claim of harassment on the basis of sex, the record
reflects that complainant is a member of a statutorily protected group
(female). However, the record does not indicate that complainant was
subjected to any unwelcome behavior related to her gender. Similarly,
the record does not reflect that complainant was subjected to any
unwelcome behavior related to her age, race, color, or reprisal.
However, in regard to complainant's claim of hostile work environment
based on national origin, complainant was able to show not only that
she was a member of a statutorily protected group (German), but also
that she was subjected to unwelcome behavior because she is German.
The record reflects that a letter was posted on the shared drive which
indicated that complainant should
�go back to Germany� because �[t]hey have much more liberal laws . . . and
maybe Germany will allow [her] a fat disability check so [she] can do
what [she] want[s].� Clearly, a letter with this type of language is
unwelcome and related to complainant's national origin. In addition,
when looking at the record as a whole, a fair reading would indicate
that the other alleged incidents, i.e., being placed on AWOL status,
could be considered harassment based on her German national origin.<4>
Looking at the fourth factor, the Commission finds that the discriminatory
letter alone was sufficiently severe to create an intimidating, hostile,
or offensive work environment.
We now turn to whether there is a basis for imputing liability to the
agency for the supervisor's actions. In Burlington Indus. v. Ellerth, 524
U.S. 742, 760-65 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775,
807 (1998), the Supreme Court made clear that employers are subject to
vicarious liability for unlawful harassment by supervisors. The standard
of liability set forth in these decisions is premised on two principles:
1) the employer is responsible for the act of its supervisors, and 2)
employers should be encouraged to prevent harassment and employees should
be encouraged to avoid or limit the harm from harassment. In order
to accommodate these principles, the Court held that an employer is
always liable for a supervisor's harassment if it culminates in a
tangible employment action. No affirmative defense is available in
such cases. EEOC Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, supra, at 7. This sort of claim
is analyzed like any other case in which a challenged employment action
is alleged to be discriminatory. If the employer produces evidence of
a non-discriminatory explanation for the tangible employment action,
a determination must be made whether that explanation is a pretext
designed to hide a discriminatory motive. Id.
In this case, the record reflects that a tangible employment action
occurred when complainant was charged as AWOL. However, the employer
produced evidence of a non-discriminatory explanation when the agency's
plant manager explained that complainant never called or notified anyone
that she was not coming to work. In addition, the plant manager stated
that �if and when her claim was accepted, OWCP would compensate the
employee for the work missed. Management at the Plant does not have
the authority or the approval rights to approve COP [continuation
of pay] or any other [w]orkman's [c]ompensation benefits.� See ROI,
Affidavit B at 8. Moreover, the record reflects that the agency's policy
specifically requires that �sick leave must be requested on PS Form 3971
and approved in advance by the appropriate supervisor.� See ROI, Exhibit
11 at 1. Nowhere in the record does complainant dispute that she did not
call in for work. In addition, the record reflects the agency authorized
COP on April 14, 2003. See ROI, Exhibit 9 at 1. Nothing in the record
reflects that the employer's non-discriminatory explanation was pretext.
Therefore, we find that the agency is not liable for the AWOL.
Since the agency is not liable for the AWOL, that is no tangible
employment action was taken, the employer may then prove an affirmative
defense comprised of two elements: 1) that the employer exercised
reasonable care to prevent and correct promptly any harassing behavior,
and 2) that the plaintiff employee unreasonably failed to take advantage
of any corrective opportunities provided by the employer or to avoid
harm otherwise. See Burlington Indus., supra; Faragherv, supra.
Thus, in regard to the discriminatory letter, the employer may prove
the above-stated affirmative defenses. Here, the employer removed
complainant's supervisor as a 204-B over complainant. The plant manager
stated that he �did not allow [the supervisor] to ever supervise
[complainant] again. After [his] investigation [was] complete[ed],
[he] removed [the supervisor] as an acting supervisor and returned
her to her craft position.� We took note that complainant presented
no evidence that the supervisor continued to harass her. Based upon
the record before us, we find that the employer promptly corrected the
harassing behavior by demoting complainant's supervisor and ensuring
that the supervisor would never supervise complainant again. While the
Commission finds that the relevant letter inappropriate and impertinent,
we also find that the agency released itself from liability by taking
prompt and effective actions.
CONCLUSION
After a thorough review of the record, the Commission affirms the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
______03-31-06____________
Date
1The record reflects that the supervisor is no longer employed with
USPS and is currently working in Iraq.
2Complainant did not include discrimination on the basis of disability
in her appellate brief. Thus, the Commission will not address this
issue here.
3Specifically, complainant's attorney asserts that because the Commission
decided that complainant's claims were sufficient to state a claim, the
agency was �unbelievab[le]� to �come[] to the same conclusion on which
it was reversed earlier.� Complainant's attorney reasoned that �[e]ven
if [c]omplainant satisfies no other claim, the [Commission] has already
directed the agency that the claim of harassment is valid.� However,
when deciding whether a claim of harassment states a claim, the facts
are viewed in a light most favorable to complainant. See e.g., Cobb
v. Department of Treasury, EEOC Request No.05970077 (March 13, 1997).
However, when a case is decided on the merits, the complainant bears
the burden of demonstrating by a preponderance of the evidence that her
complaint states a claim. See e.g., Reyes-Vanegas v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01A34154 (January 3, 2005)
(finding no discrimination where the complainant failed to prove
harassment by a preponderance of the evidence).
4The record does not specifically state which supervisor placed
complainant on AWOL status.