0120121552
06-18-2012
Brenda M. Powell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Brenda M. Powell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120121552
Hearing No. 541-2010-00009X
Agency No. 4E-800-0066-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 18, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Rural Carrier Associate (RCA) at the Agency's Fort Collins, Colorado Old Town Post Office. The record reflects that Complainant worked four to seven days per week on a needed basis. The record further reflects that RCAs fill in for other carriers on their days off.
On April 14, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of sex (female), disability (back, hand, and depression), and in reprisal for prior EEO activity (reported sexual harassment) when1:
1. on January 26, 2008, she was subjected to sexual harassment and continued retaliation when she was transferred to a job with only one day of work per week;
2. since December 2008, her request to be transferred back to Ft. Collins had been ignored; and
3. ongoing, since June 2008, she has been harassed daily.2
Following a five-day hearing held on October 13 - 15, 2010 and November 3 and 10, 2010, the AJ issued a decision on December 30, 2011, finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of sex, disability, and retaliation. The AJ further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding claim 1, the AJ found that Complainant had been subjected to sexual harassment on January 23, 2008, but determined that the Agency was not liable for it. Specifically, the AJ found that any prior allegations of sexual harassment by named male carrier (C1) were not reported to Agency management, and that management was not aware of, and had not observed, the alleged harassment. The AJ further found that once Agency management learned of Complainant's assault complaint, it took prompt and effective remedial action by removing C1 from the premises. Complainant never worked with C1 again.
Moreover, the AJ noted when Complainant complained of potential retaliatory conduct by a named co-worker as a result of her sexual harassment complaint, Agency management took immediate action to stop it.
During his testimony, Complainant's supervisor (S1) stated that during the relevant time he never received any complaints from other employees concerning C1's behavior. S1 further stated that he never observed C1 hugging anyone. S1 stated that he first learned of Complainant's sexual harassment allegations when the Acting Manager (AM) called him at home on Saturday, January 26, 2008. Specifically, S1 stated that AM "wanted me aware that [Complainant] had called her and talked about some inappropriate behavior and hadn't mentioned any specific names, and it would be something that I would need to look into Monday morning [January 28, 2008] when I came in."
S1 stated that on Monday, January 28, 2008, he approached Complainant and "told her that I had received a call from [AM] on [the preceding] Saturday that there had been some issues and asked [Complainant] if she wanted to tell me what was going on. [Complainant] informed me that she didn't want to talk about it right then. She wanted to finish casing her route and delivering her route, and she would talk to me when she got back." S1 stated that later that afternoon, he met with Complainant and she handed him a statement concerning the alleged sexual harassment incident. Specifically, S1 stated that Complainant told him that last Saturday, January 26, 2008, C1 "had come into her case, I think it was Rural 17's case, put his hands on her, kissed her, put his hands like up the back of her shirt. I think she said he may have forced his tongue in her mouth." S1 stated that based on Complainant's allegations, he felt it imperative to conduct an investigative interview with C1 "to ascertain exactly what all happened, what his side of the story is." S1 stated that following his conversation with Complainant, he contacted the Station Manager and Postmaster.
S1 stated that by the time he received Complainant's statement, C1 had left work for the day. S1 further stated that he had to wait for C1 to return to work on January 30, 2008 before he could interview him. S1 stated that he arranged for a union representative present during the investigative interview with C1. S1 stated "based on that interview, I deemed it was necessary to place [C1] off the clock." S1 stated that he escorted C1 off the premises and told him not to report to work until he was told to. S1 stated that he also told C1 not to have any contact with Complainant. S1 stated that he interviewed other employees "when different issues or things came up, I brought [C1] back in for follow-up interviews for clarifying questions." S1 stated that once he completed the investigation, he handed the documentation to the Postmaster "because he's the installation head and the deciding official. He overlooked everything. Based on my findings in these interviews, I felt due to [C1's] actions removal was warranted, and then I issued that discipline." The record reflects that C1 thereafter filed a grievance and ultimately mitigated the removal to a resignation from Agency employment.
Further, S1 stated that he took Complainant's allegations seriously because S1's wife "was a victim of sexual abuse. I'm sorry. My step mom works for the post office, at some time my daughter might work for the post office and some time my wife might work for the post office. I would like them to have the opportunity to come to work without having what happened to [Complainant] happen to them." S1 stated that when management learned of rumors concerning Complainant's sexual harassment complaint, it held a standup meeting to reiterate its zero tolerance of sexual harassment policy. Specifically, S1 stated that the standup meeting was "to inform the employees that there had been a sexual harassment complaint filed. We didn't mention any specific names. To remind the employees that the policies that the post office has for zero tolerance for sexual harassment and workplace violence, to reiterate what may be construed as sexual harassment."
With respect to Complainant's allegation that management told her that they would take care of her sexual harassment allegations or alternatively, that she should not file a formal EEO complaint, S1 denied these actions. S1 stated that he never promised to file an EEO complaint for Complainant or told her that the paperwork she was filling out was part of the EEO complaint process.
Moreover, S1 stated that he had no involvement in Complainant's transfer to the Mead Post Office. S1 stated that he had one conversation with Complainant concerning a transfer. Specifically, S1 stated that Complainant asked him if there was another facility that would be willing to accept her "in a transfer, would we be willing to get her go. I said I didn't know of any reason why we wouldn't let her go."
The former Station Manager (SM) stated that he never received any complaints about C1 sexually harassing anyone before the January 2008 incident. SM stated that his role in the investigation of Complainant's sexual harassment complaint was to supervise the supervisors conducting the investigation. SM stated that following the investigation of C1's conduct "towards [Complainant], we felt it was severe enough to warrant removal from the Postal Service." SM stated that during the relevant time, he never told Complainant not to file an EEO formal complaint or that he would file a complaint for her.
The former Officer-in-Charge (OIC) of the Mead Post Office testified that during the relevant time she contacted managers within the area "to see if the RCAs from their office would like to pick up more hours, and I had some volunteers that came forward. And [named RCA] from Berthound came and looked at the route and we discussed the route, and she said this might be a good route for [Complainant], . . . and she said she would contact me." OIC stated that Complainant contacted her and stopped by the Mead Post Office for a tour. OIC stated that at that time she told Complainant that the job was a one day a week but there might be more work because they did not have a substitute for the other route. Specifically, OIC stated that she explained to Complainant that she would get one hour a week "several times. Every time I talked to her that it was - - she would get Saturday." OIC stated that following the tour, Complainant "indicated that she would be interested in transferring to Mead, and therefore we decided to train her and she was able to work for us prior to her official effective date."
Regarding claim 2, the AJ found that Complainant's transfer to the Agency's Mead Station was voluntary and requested by her. The AJ further found that Complainant's requests for transfer back to Ft. Collins were made at times when she was not medically able to work, the transfer was not feasible or she did not make a proper request. The AJ also determined that Complainant's claim of how many times she called to request a transfer was not credible, and that she never established that she properly requested a transfer in writing as required when she was able to work and there were open positions.
S1 stated that after Complainant's transfer to the Mead Station, he spoke with her on two different occasions in which "she expressed interest in transferring back to Fort Collins." S1 stated that he told Complainant "she needed to submit a request in writing from the postmasters both from where she wanted to transfer to and from expressing her interest in transferring." S1 stated that he never received any written transfer requests from Complainant.
With respect to Complainant's allegation that before she transferred to the Mead Post Office, S1 told her that she could return to Fort Collins any time, S1 denied that he ever made such a promise. S1 stated that he had no authority to allow Complainant return to Fort Collins any time.
Regarding claim 3, the AJ noted that after transferring to Mead Post Office in June 2008, Complainant was off from September 16, 2008 to February 11, 2009, for back and hand surgery. Complainant continued to be absent from work in March 2009 and April 2009. Complainant received discipline in 2009 for missing five weeks of work although she only worked one day per week. Complainant was released to work in May 2009 and worked for a couple of weeks. The AJ noted that in May 2009, OIC recommended that Complainant consider requesting reasonable accommodation. The AJ noted that in mid-summer 2009, Complainant worked for eleven days over several weeks. On July 22, 2009, the Chair of the Reasonable Accommodation Committee (RAC) contacted Complainant concerning reasonable accommodation. Complainant responded stating that she had been released to work physically but not mentally. The AJ noted that because Complainant provided inadequate documentation, her RAC file was closed.
Further, the AJ noted that Complainant returned to work some time after December 10, 2009 and worked for a short time. The AJ noted that the last time Complainant worked was February 2010. The record reflects that Complainant was released to return to work from her physical restrictions on November 2010 but still was not released by her mental health provider (P1). The record further reflects that Complainant's P1 informed OIC that Complainant could not work because of her disability. On May 26, 2009, Complainant asked OIC for a transfer back to Fort Collins. The AJ noted that according to OIC, she stated that it was the only transfer request she received from Complainant. The AJ noted that in December 2009, the Agency made some sort of offer to Complainant to return to work and P1 released Complainant back to work.
The AJ noted that in February 2010, the new Officer-in-Charge (OIC2) started working at the Mead Post Office. The AJ noted that according to Complainant, she observed OIC2 getting on the counter to dance and unbuttoning his short. Complainant filed a worker's compensation claim based on the incident, which was approved. The AJ noted that Complainant's physician stated that Complainant could not work with men. The AJ noted, however, on April 22, 2010, Complainant stated that she could return to work but P1 had not released her to work. The AJ noted during her testimony, Complainant acknowledged that she has never presented the Agency with a release to work from P1.
OIC stated that Complainant worked regularly by covering Saturdays for Route 1 at the Mead Post Office. OIC stated that Complainant started having attendance problems. OIC stated that around July 20, 2008, Complainant began to be unavailable to cover routes because her step mother had died. OIC stated that Complainant was off from work from July 20, 2008 to July 30, 2008. OIC stated that from September 16, 2008 to December 11, 2008, Complainant was on Family Medical Leave due to back surgery. OIC stated that Complainant was supposed to report to work on December 13, 2008 but she did not come in that day. OIC stated that she issued Complainant a Seven-Day Suspension dated March 4, 2009 because "there were multiple times of unscheduled absences and it's required that employees be regular in attendance." OIC stated that Complainant did not file a grievance regarding the Seven-Day suspension. OIC stated that during the relevant time she had difficulties in communicating with her.
Further, OIC stated that approximately two months later, she issued Complainant a Fourteen-Day suspension dated May 13, 2009 for failure to be regular in attendance. Specifically, OIC stated that Complainant was out of from work from April 4,, 2009 to May 9, 2009. OIC stated that Complainant filed a grievance concerning the Fourteen-Day suspension. As a result of the grievance, the Fourteen-Day suspension "was to be in [Complainant's] file for two years. It was negotiated down to where it would only be in her file for only one year." OIC stated that on May 15, 2009, Complainant returned to work. OIC stated that she had to train Complainant again for Route 1 "because we had changed the routes a little bit, so we gave her more training."
OIC testified that she did not subject Complainant to a hostile work environment. OIC stated that several occasions, she observed Complainant wearing halter tops and spandex shorts. OIC stated that she mentioned the Agency's rule of conduct to Complainant because she was wearing inappropriate clothing. Specifically, OIC stated "I commented within the rules of conduct. It says appropriate work wear to be able to give the public a professional appearance of the post office, and I addressed that with her and it was corrected. OIC stated that she enforced the same policy with other employees. OIC stated that on one occasion she mentioned to Complainant that "her teeth were very white, and I simply asked - - I gave her a compliment on how nice her teeth looked, and I wanted to know what product she used so I could get that for my children to help their teeth."
With respect to Complainant's allegation that OIC told other employees that she was going to fire her, OIC denied it. OIC acknowledged that other employees made inquiries about Complainant because "everybody was having to work overtime, and so therefore they would inquire, you know- - - is [Complainant] coming back?." OIC stated that as a result, she had to hire another carrier for Route 2 which was not Complainant's route.
S1 stated that following the sexual harassment incident, he never observed employees making fun of Complainant. S1 stated that Complainant never approached him saying that other employees were making fun of her and retaliating against her. S1 further stated "I would have taken it seriously, because it violates the zero tolerance hostile working environment that the post office has, and I would have investigated it and taken any appropriate action that I deem necessary to correct it."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred finding no discrimination. For instance, Complainant argues that the AJ improperly credited Agency witnesses "for testimony or her opinion of the witness that contradicted the testimony in the case. Further, the AJ ignored material factual evidence and issues completely in her decision and did not apply salient law, reaching a determination that was unsupported by the factor basis or the law."
Complainant further argues that S1 knew or should have known that C1 sexually harassing her because he "trivialized the attack. He testified that the worst [C1] did was put his hands up her shirt and may have forced his tongue into her mouth." Complainant states that the AJ "mischaracterized [OIC's] hostile treatment of [Complainant] as being caused by poor attendance. The AJ states [OIC] was a harsh manager but did not even know about the sexual assault until May, 2009."
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, � VI.B. (November 9, 1999).
As an initial matter, the Commission notes that out of 35 witnesses, 13 witnesses testified by telephone at the hearing held by the AJ. The Commission has held that testimony may not be taken by telephone in the absence of exigent circumstances, unless at the joint request of the parties and provided that specified conditions have been met. See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).3 It is clear that there were no issues of witness credibility that might have been impacted by the taking of testimony by telephone, and neither party objected to the manner in which those witnesses testified. Under these circumstances, even if it is assumed that the AJ abused her discretion by taking testimony by telephone, the Commission finds that her action would have constituted harmless error.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as detailed in the Background section above. Neither during the investigation nor on appeal has Complainant produced evidence that prove, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Harassment/Hostile Work Environment
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 severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally 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 must be determined by looking at all of 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. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6.
In the instant case, the AJ found, and the evidence of record supports, that the alleged incidents at issue in their totality, even if assumed to be true, are insufficiently severe or pervasive to establish that Complainant was subjected to a hostile working environment or that the incidents occurred because of Complainant's sex, disability or prior EEO activity. Rather, the record supports the AJ's finding that Complainant was subjected to sexual harassment by C1 and that the Agency responded to Complainant's allegations in an immediate and appropriate manner. The record reflects that management officials began an investigation soon after they became aware of the alleged sexual harassment. We also agreed with the AJ that Complainant's transfer to the Agency's Mead Station was voluntary and requested by her; and that her requests for transfer back to Ft. Collins were made at times when she was not medically able to work, the transfer was not feasible or she did not make a proper request. Moreover, the record supports the AJ's findings that Complainant was not subjected to harassment by OIC because the discipline Complainant received was consistent with the Agency's unscheduled leave policy regardless whether she had a legitimate reason to be absent.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.4
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 18, 2012
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
2 The record reflects that claims 1 and 3 were later amended to the instant formal complaint.
3 In Louthen, the Commission has promulgated its policy regarding the taking of telephonic testimony in the future by setting forth explicit standards and obligations on its Administrative Judges and the parties. Louthen requires either a finding of exigent circumstances or a joint and voluntary request by the parties with their informed consent. When assessing prior instances of telephonic testimony, the Commission will determine whether an abuse of discretion has occurred by considering the totality of the circumstances. In particular, the Commission will consider factors such as whether there were exigent circumstances, whether a party objected to the taking of telephonic testimony, whether the credibility of any witnesses testifying telephonically is at issue, and the importance of the testimony given telephonically. Further, where telephonic testimony is improperly taken, the Commission will scrutinize the evidence of record to determine whether the error was harmless, as is found in this case.
4 On appeal, Complainant does not challenge the April 25, 2009 partial dismissal issued by the Agency regarding one claim (that she was discriminated against on the bases of sex and in reprisal for prior EEO activity when ongoing from on or about 2007 to June 20, 2008, she was subjected to a hostile work environment including being sexually harassed, sexually assaulted, taunted by co-workers, denied a temporary transfer, and forced to transfer to another office). Therefore, we have not addressed these issues in our decision.
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Office of Federal Operations
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Washington, DC 20013
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