0120121634
06-27-2012
Yolanda D. Strickland, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Yolanda D. Strickland,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120121634
Hearing No. 410-2010-00384X
Agency No. 1H303003109
DECISION
Complainant filed an appeal from the Agency's January 18, 2012, final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Logistics and Distribution Center in Atlanta, Georgia.
On July 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was harassed when a supervisor shoved open an office door with extreme force and with the intention of causing her bodily harm.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing and issued a bench decision on October 28, 2011, finding no unlawful retaliation had been proven.
In her decision, the AJ found that Complainant had filed a previous EEO complaint alleging harassment by the supervisor in question in the instant complaint, which was settled in 2004. The incident in question occurred in May 2009, nearly five years after her previous complaint had settled. Complainant stated she was standing in an office near the door and that the supervisor opened the door swiftly, and Complainant felt that the supervisor was trying to hit her with the door.
The supervisor testified that he had no idea Complainant was in the room at the time and opened the door as he normally does. He stated that Complainant had a delayed reaction, looked startled, and left the office.
Shortly after the alleged incident, Complainant wrote a letter to her U.S. Senator stating that she had been working in fear of retaliation by the supervisor for the past eight years, that he followed her around the building, he threatened to have her fired, he invaded her personal space, and that her managers allowed her to work under him no matter how hard she protested. Complainant stated in the letter that she was afraid of the supervisor's recent attempts of physical violence against her. Complainant wrote that the supervisor tried to hit her with the door as he entered the office, that he threw open the door while she stood directly in front of it and frightened her so badly that she ran from the office in "sheer terror."
A witness, who was in the office, testified that the supervisor did not open the door any more aggressively than usual, and she did not see the supervisor try to hit Complainant. The witness testified that the supervisor could not have hit Complainant given she was standing to the left of the door and the door opens to the right. The same witness stated that after the supervisor opened the door, Complainant made a comment and walked out. The witness stated that Complainant was not in a state of "sheer terror" and it did not appear that she ran out of the office.
The AJ made a specific finding that Complainant was not a credible witness. The AJ noted that Complainant's testimony at the hearing, her affidavit submitted during the investigation and her letter to her Senator all gave different versions of the facts. For example, at the hearing Complainant testified that she walked out of the office and that her statement in the letter that she ran in terror must have been an error. The AJ also noted that Complainant also stated in the letter that she saw a look on the supervisor's face that was full of hatred and anger, but the AJ indicated that Complainant did not state that in her affidavit not did she testify to such at the hearing. The AJ noted that although testified that she screamed and the incident made her anxious, she continued her work day and worked overtime and continued to work the rest of the week. The AJ also noted that there was a five year gap between the time Complainant filed her prior EEO complaint to the current incident, and that she never filed another complaint against the supervisor during the intervening time despite alleging he was constantly trying to intimidate her. The AJ concluded that Complainant had not proven that she was retaliated against or subjected to a hostile work environment.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to unlawful retaliation as alleged.
The Agency adopted the AJ's findings and the instant appeal followed without comment.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
In determining whether a harassment complaint states a claim in cases where a complainant had not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Est. of Routson v. Nat'l Aeronautics and Space Admin., EEOC Request No. 05970388 (Feb. 26, 1999).
Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request No.05940695 (Feb. 9, 1995).
The Commission finds no reasons to disturb the credibility findings of the AJ. The AJ noted that Complainant's own conflicting testimony lacked credibility that she even subjectively perceived this incident to be harassing. The AJ found there was no testimony, other than Complainant's subjective testimony which was not credible, that the supervisor was attempting to hit her with the door. Simply put, the AJ found that Complainant was not truthful. The AJ found the supervisor's testimony to be credible and supported by the witness.
Finally, the AJ found that the incident was not sufficiently severe to create a hostile work environment. Additionally the AJ found that the five year gap between Complainant's prior EEO complaint and the instant incident failed to establish a casual connection between the prior EEO case and the supervisor opening the door towards her. The evidence of record amply supports the findings of the AJ.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission finds that Complainant has failed to establish that she was retaliated against or subjected to a hostile work environment when the supervisor opened the door.
The Agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
June 27, 2012
__________________
Date
2
0120121634
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121634