0120100736
02-02-2012
Jane R. Norton, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Jane R. Norton,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120100736
Agency No. 4C-080-0054-09
DECISION
On November 25, 2009, Complainant filed an appeal from the Agency’s
October 23, 2009, final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the
appeal, pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
Whether the Agency erred in finding that Complainant was not subjected
to hostile work environment harassment based on her physical disability
(hearing).
BACKGROUND
Complainant worked as a Distribution/Window Clerk at the Wildwood Post
Office in Wildwood, New Jersey. According to Complainant, she had
Meniere's Disease, an inner ear disorder that caused hearing loss,
vertigo, headaches, and tinnitus (noise or ringing in the ear).
On May 11, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of disability (hearing)
when:
1. on April 2, 2009, the Postmaster subjected her to unwelcome verbal
conduct;
2. on April 4, 2009, the Postmaster told her to take off her headset,
mocked her by stuttering the word “tinnitus,” and persisted in saying
“smile sunshine smile” after having already upset Complainant.
3. on April 6, 2009, the Postmaster complained about summoning her to
the office multiple times before she complied.
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).
In accordance with Complainant’s request, the Agency issued a final
decision, pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. First, the Agency determined that Complainant
did not provide sufficient medical documentation to show that she was an
individual with a disability. Even if Complainant could establish that
she was an individual with a disability, the Agency found Complainant
could not establish hostile work environment harassment because (1)
she could not show that the Postmaster’s unwelcome verbal conduct
was based on her disability; and (2) she could not show that the verbal
conduct was sufficiently severe or pervasive.
CONTENTIONS ON APPEAL
Complainant did not submit a statement in support of her appeal.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo an agency’s final decision that is
issued without a hearing under 29 C.F.R. § 1614.110(b). 29 C.F.R. §
1614.405(a).
“The de novo standard requires that the Commission examine the
record without regard to the factual and legal determinations of the
previous decision maker. . . . The Commission will review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . will issue its decision based on
the Commission’s own assessment of the record and its interpretation
of the law.” Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Hostile Work Environment Harassment
To establish hostile work environment harassment by a supervisor,
Complainant must show five things. First, Complainant must be a member
of a statutorily protected class. Second, the supervisor engaged in
unwelcome verbal or physical conduct. Third, the unwelcome conduct
was based on Complainant’s statutorily protected class. Fourth, the
unwelcome conduct either (a) affected a term or condition of employment,
or (b) had the purpose or effect of unreasonably interfering with the
work environment or creating an intimidating, hostile, or offensive
work environment. Fifth, there is a basis for imputing liability to
the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11.
Even if we assumed, for the sake of argument only, that Complainant is
an individual with a disability, we determine that Complainant cannot
show the third or fourth elements of a hostile work environment claim:
the unwelcome conduct was based on Complainant’s disability, and the
unwelcome conduct created an intimidating, hostile, or offensive work
environment.
Unwelcome Conduct Based on Complainant’s Disability
The overall testimony of Complainant’s coworkers suggest that the
Postmaster subjected many employees to the same type of verbal conduct
that Complainant experienced. For example, one coworker averred that
the Postmaster verbally harassed not only Complainant, but others who
disagreed with the Postmaster. Report of Investigation (ROI), Affidavit
(Aff.) A, at 5. Another coworker testified that the Postmaster often
belittled employees, called employees “sunshine,” screamed at
employees, and “drove people crazy.” ROI, Aff. G, at 4, 6, 7.
Such testimony of similar treatment by the Postmaster towards other
employees suggests that the Postmaster’s verbal conduct toward
Complainant was based more on the Postmaster’s personal management
style rather than Complainant’s disability.
Moreover, in her affidavit, Complainant admitted that she did not believe
her disability was a factor in the Postmaster’s verbal conduct on April
2 and 6, 2009.1 Report of Investigation (ROI), Affidavit (Aff.) A, at 8.
Therefore, we find that the Postmaster’s verbal conduct on April 2
and 6, 2009 were not motivated by Complainant’s disability.
Severity of Unwelcome Conduct on April 4, 2009
The only remaining issue is whether the Postmaster’s verbal conduct on
April 4, 2009, telling Complainant to take off her headset, mocking her
by stuttering the word “tinnitus,” and persisting in saying “smile
sunshine smile,” was “sufficiently severe or pervasive to alter the
conditions of [Complainant’s] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
In determining whether the unwelcome conduct was sufficiently severe or
pervasive, the Commission evaluates the harasser’s conduct 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, at 6 (Mar. 8, 1994). While a single incident or isolated
incidents of offensive conduct or remarks generally do not create an
abusive environment, a single incident may be sufficient to create an
abusive environment if it is unusually severe.
Upon review, we determine that a reasonable person in Complainant’s
circumstances would not have found the Postmaster’s isolated verbal
conduct on April 4, 2009 to be sufficiently severe to create a hostile
work environment. The Postmaster’s request for Complainant to take
off a headset for safety reasons and comments to “smile sunshine
smile” are not inherently hostile or derogatory to individuals with
disabilities. And as previously noted, coworkers testified that the
Postmaster did not single out Complainant with the “shine sunshine
shine” comments; the Postmaster used the moniker “sunshine” for
other employees as well. Finally, we find that the Postmaster’s
stuttering of the word “tinnitus,” though it engendered offensive
feelings in Complainant, did not affect the conditions of her employment
to a sufficiently significant degree to violate the Rehabilitation Act.
Therefore, we find that Complainant did not sufficiently establish that
she was subjected to hostile work environment harassment on the basis
of disability.
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, finding no discrimination on the basis alleged.
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
___2/2/12_______________
Date
1 Regarding April 2, 2009, Complainant described in an unsworn statement
that the Postmaster yelled at her for filing a grievance instead of
talking to management first about a problem. ROI, Aff. A, at 18.
This suggests that the Postmaster’s verbal conduct on April 2, 2009
was based on Complainant’s union-related activity, rather than on
her disability.
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0120100736
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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