01976834
03-10-1999
Jessie B. Hayes, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (All/Mid-Atlantic Region) Agency.
Jessie B. Hayes, )
Appellant, ) Appeal No. 01976834
v. ) Agency Nos. 4D-290-1094-94
William J. Henderson, ) 4D-290-1021-95
Postmaster General, ) Hearing Nos. 110-95-8141X
United States Postal Service, ) 110-95-8336X
(All/Mid-Atlantic Region) )
Agency. )
DECISION
Appellant timely initiated an appeal to this Commission 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,
as amended, 42 U.S.C. �2000e et seq. and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted
pursuant to the provisions of EEOC Order No. 960.001.
The issues presented are whether appellant was discriminated against based
on her sex, race (Black), mental disability (job stress/depression)<1> or
retaliation for protected EEO activity when she was: (1) not reimbursed
for expenses incurred while attending an EEO hearing in May 1994; (2)
told on July 9, 1994, that she would be allowed to work only four hours a
day; (3) told that her seniority was changed; (4) told by management on
September 26, 1994, to cease talking; (5) denied Window Clerk Training
on September 26, 1994; (6) not granted 240 hours of advanced sick leave
on October 29, 1994; and (7) denied administrative leave for the period
of October 31, through November 4, 1994.
The record reflects that appellant joined the agency as a Distribution
Clerk in 1981. In 1989, she transferred from Missouri to South Carolina.
As noted below, appellant was hospitalized for three days in February
1992, and received certain outpatient psychiatric care later in 1992.
In 1993, appellant transferred back to Missouri. In July 1994, after
appellant failed to qualify on MPLSM training, she transferred back to
South Carolina as a Part-Time Flexible Clerk ("PTF"). Appellant's instant
complaint was accepted by the agency, which complied with all procedural
prerequisites. Appellant timely requested and received a hearing before
an EEOC Administrative Judge ("AJ"). The AJ issued a recommended decision
("RD") finding that appellant failed to establish discrimination based
on sex or race with respect to any of her allegations. The AJ found that
appellant established that she was retaliated against, and may have been
subjected to discrimination based upon a mental disability, with respect
to allegations (1), (2), (3) and (5). Thereafter, the agency timely
issued its FAD, which rejected the RD insofar as it found discrimination.
Appellant timely appeals the FAD, without comment.
As to appellant's claim that she was subjected to discrimination based
upon a mental disability, the record indicates that she was hospitalized
for mental health treatment for three days in February 1992 and received
some outpatient care later in 1992. The AJ initially held that she
failed to establish a prima facie case due to the �dearth of objective and
credible medical evidence in support of her claim.� RD at 218. While the
AJ noted that appellant had provided some evidence establishing that she
had been hospitalized in February 1992, she was unable to provide even
the name of the psychiatrist who provided the outpatient care later in
1992 and did not otherwise establish that she had undergone care since
that time. To the extent that certain of her 1992 records could be
construed as establishing that appellant was an individual with a record
of a disability, as defined in 29 C.F.R. �1614.203(a)(4), the AJ found
no evidence that �such record[s] substantially affected one or more of
[her] major life activities.� Id. However, as �an alternative ruling,�
the AJ stated that
To the extent I am incorrect with respect to whether [appellant] has
... a mental disability within the meaning of the Rehabilitation Act,
by showing that she meets the 'record of' prong ..., I find that ... To
the extent [appellant] comes within the protection of the Rehabilitation
Act, the evidence of record demonstrates that she was singled out
for treatment that would cause an individual suffering from a mental
disability to be unlawfully subjected to a series of acts and actions
that adversely effected [sic] their work condition, solely by virtue
of their disability. [When] the agency's actions are ... scrutinized
[under the Rehabilitation Act] the agency['s] ... course of action
... certainly would, and reasonably could have been foreseen to,
irritate her or any reasonable person. [Because the agency could have
dealt with her allegations without putting her] through the process
of needing to initiate and carry out this cumbersome [EEO] process to
get an explanation of what was happening to her could only be viewed as
harassment. [Since I find that such harassment was not] based upon race,
sex, sex based on pregnancy or physical disability, there is reason to
believe that it was perpetrated to further exacerbate, stress out, or
injure based upon a known mental disability, if [appellant's] 'record of'
was sufficient to bring her within the coverage of the Act.
RD at 219-21.
In addition, under this theory, the AJ found that the agency's actions
demonstrated that it "fail[ed] to even strive to become a model
employer of qualified individuals with disabilities," since the agency
showed "reckless indifference" to appellant's protests regarding her
reimbursement for expenses (allegation (1)), being told that she might
be allowed to work only four hours a day (allegation (2)), learning that
her seniority date was changed (allegation (3)) and being denied window
training (allegation (4)). RD at 235.
In its FAD, the agency agreed with the AJ that appellant failed to
present any current objective medical evidence to substantiate that
she currently suffered from depression or stress which substantially
limited a major life activity. The agency agreed with the AJ insofar
as he appeared to hold that appellant failed to establish that any
records of her psychiatric treatment in 1992 affected the agency's
actions, finding no evidence that the relevant agency officials were
even aware of her alleged disability or the records of her treatment for
depression and stress. Since appellant was alleging disparate treatment,
and not failure to accommodate, the agency found that appellant failed to
establish the necessary causal connection between her alleged disability
and the agency's actions. Accordingly, the agency found that appellant
failed to establish discrimination based on a mental disability.
After a careful review of the record, the Commission finds that the
AJ's initial determination was proper and the Commission agrees that
appellant failed to establish that she was an individual with a mental
disability, in that she failed to produce evidence that she currently
had depression or stress which substantially limited a major life
activity. While appellant produced evidence that she was hospitalized
for treatment for three days in 1992 and received outpatient care in
1992, the Commission again concurs with the AJ's initial determination
that her failure to establish that the officials taking the challenged
actions in 1994 were aware of such records, or otherwise regarded her as
an individual with a disability as defined in the Rehabilitation Act,
precludes her from establishing that she was subjected to disparate
treatment based upon her mental disability. Accordingly, the Commission
finds that the AJ's analysis under an "alternative theory" in the event
his initial determination was found to be in error is irrelevant.
As to allegation (1), as noted above, appellant transferred to Missouri
from South Carolina in 1993. In 1994, while still working in Missouri,
appellant traveled to South Carolina to attend a hearing on one of her
prior complaints which arose there. In September 1994, she submitted a
voucher seeking reimbursement of her expenses (including airline costs)
in connection with her travel to South Carolina. However, appellant
did not attach any receipts to her voucher. The Labor Representative
mailed appellant instructions for proper completion of a voucher, which
noted that receipts were specifically required under agency regulations.
After appellant responded that she could not locate any receipts, the
agency refused to pay the voucher. Appellant argues that her presence
at the hearing, and consequently her need to incur such expenses, was
established by the agency's own records on her prior complaint.
The AJ found that EEOC Management Directive (MD) 110 and 29
C.F.R. �1614.605 require agencies to implement EEO programs and
that agencies must, therefore, "make employees available." The AJ
reasoned that the agency "was under an affirmative obligation to contact
[appellant] in order to, in fact, coordinate her travel, provide her with
a plane ticket .. [and otherwise ensure] that [she] was at the hearing,
ready to proceed ... without ... concerns about how she would get to the
hearing or get back home." RD at 228. Consequently, the AJ found that
appellant established that the agency's refusal to pay her expenses was
a pretext for reprisal discrimination. As relief, the AJ recommended
that appellant be given another opportunity to obtain evidence of her
ticket cost from the airlines, but if such evidence was not available,
the agency was to present appellant's voucher to its "secondary,
tertiary or intervening levels up to the ultimate level of authority"
and then, should such authorities find payment impermissible under agency
regulations, to assist appellant and pay all costs for her to appeal the
denial to any reviewing authority, including the Comptroller General,
the General Accounting Office or the courts. See RD at 241.
However, while EEOC MD 110 provides that the agency shall pay the travel
expenses of a complainant who is currently employed by the agency, the
Commission does not agree that this obligation excuses the complainant
from compliance with the agency's regulations governing the procedures for
obtaining reimbursement of such expenses. So long as such regulations
are uniformly applied to employees traveling on EEO and other matters,
the Commission is not persuaded that employees traveling on EEO matters
are released from compliance. Accordingly, the Commission finds that
the AJ erred in holding that the agency's denial of reimbursement
for undocumented expenses was a pretext for reprisal discrimination.
In this regard, the Commission has held that the burden of proof is on
the complainant to offer specific evidence establishing entitlement
to the costs sought and that the failure to provide the agency with
copies of applicable bills "is fatal" with respect to a claim for
reimbursement, whether for mileage, food, lodging, telephone toll charges
or photocopying, regardless of whether such expenses logically "must
have been" incurred. Canady v. Department of the Army, EEOC Request
No. 05890226 (December 27, 1989). Inasmuch as the record (and the
AJ's order) clearly reflect that no comparative employee lacking such
receipts was paid expenses by the agency, the Commission finds that
the AJ's finding of reprisal constituted a misinterpretation of law.
Accordingly, the Commission affirms the FAD insofar as it found that
appellant failed to establish reprisal with respect to allegation (1).
As to appellant's remaining allegations, the AJ found, and the Commission
agrees, that she failed to establish a prima facie case of race or
sex discrimination, in that she failed to establish that any similarly
situated person outside of her protected classes of race or sex were
treated more favorably than she. The Commission agrees with the AJ that
appellant established a prima facie case of reprisal with respect to the
remaining allegations, inasmuch the relevant agency officials were aware
of some or all of appellant's 12 prior EEO complaints. Accordingly, the
burden of proof then shifted to the agency to articulate a legitimate,
non-discriminatory explanation for its action. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency articulated
such a reason, the question becomes whether the proffered explanation was
the true reason for the agency's action, or mere pretext. The burden then
shifts back to appellant to show, by a preponderance of the evidence,
that the agency was more likely motivated by discrimination, or that
the agency's proffered explanation is unworthy of credence. Burdine,
450 U.S. at 256; Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d 222 (1st
Cir. 1976). While the burden of production may shift, the ultimate
burden of persuasion remains on appellant at all times. See Board of
Trustees of Keene College v. Sweeney, 439 U.S. 24, 25 n. 2 1978).
After a careful review of the record, the Commission finds that the
AJ properly found no reprisal with respect to allegations (6) and (7).
As previously noted, appellant was pregnant and she had an anticipated
delivery date of November 8, 1994. The agency denied appellant's request
for 240 hours advanced sick leave (allegation (6)) on the basis that her
leave record did not provide sufficient and justifiable evidence that she
would be able to pay back the leave. After appellant actually gave birth
on October 31, 1994, the agency denied her request for administrative
leave (allegation (7)). We agree that appellant failed to establish
as pretextual the legitimate, nondiscriminatory reasons articulated by
the agency for denying her requests.
With respect to being instructed to stop talking (allegation (4)), the
Commission finds that the AJ properly determined that appellant was not
treated differently than other employees and that, while employees are
permitted to chat when work is light, her prior protected activity did
not influence her supervisor's instruction to cease talking at the time
in question.
As to allegation (2), the record reflects that PTFs are only guaranteed
four hours of work a day. In 1995, appellant transferred back to South
Carolina after failing her MPLSM training in Missouri. She was informed
by her supervisor in South Carolina that, until she passed such scheme
training, she might not be utilized more than the four hours guaranteed
to PTFs. However, appellant actually never worked less than 40 hours
per week. Allegation (3) concerns appellant's seniority date. As noted
above, appellant joined the agency as a Distribution Clerk in 1989.
When she transferred back to South Carolina as a PTF on July 9, 1994,
the Postmaster there consulted with the Labor Relations Office about
her proper seniority date. He was advised that since appellant had
relinquished her position as a regular employee and reverted back to a
PTF, her seniority date should be set as July 9, 1994. In September 1994,
an opportunity for window training arose. However, because appellant's
seniority date had been set as July 9, 1994, the opportunity was given to
two other clerks with greater seniority (allegation (5)). After appellant
grieved her seniority date, her original date was restored pursuant to
a settlement.
Noting that there was work to do in other areas (which appellant was in
fact assigned), the AJ determined that the supervisor's statement that
appellant's hours might be limited amounted to a "taunt" which could
"only be looked at as a form of harassment that's designed to get back
at her for her EEO activity, subtly suggest to her the correct stance to
take regarding, or outright dissuade her about, any further or additional
EEO activity, and/or to exacerbate her mental disability." RD at 234.
Similarly, the AJ found that agency's failure to provide appellant
"with a true and accurate seniority date" and "let[ting] the ball drop
until such time as the grievance took its logical course," demonstrated
a reckless disregard for the agency's duty to be a model employer and
amounted to concrete evidence of an intent to retaliate against her.
RD at 235. Thus, the AJ found that appellant established retaliation
with respect to allegations (2), (3) and (5).
In its FAD, the agency noted that appellant's most recent EEO activity
had occurred some 11 months before and the agency found that length of
time insufficient to establish an inference of reprisal. The Commission
finds that, in light of appellant's extensive history of EEO activity,
an inference of reprisal can be made. Insofar as the agency protests
that this allegation fails to state a claim under 29 C.F.R. �1614.107(a)
because no concrete action adverse to appellant was taken, the Commission
finds that this allegation should be analyzed as an allegation of
harassment, together with allegations (3) and (5).
Turning first to allegation (3), the Commission believes that the AJ
erred in inferring that the agency's settlement of appellant's grievance
established that it initially denied her "a true and accurate seniority
date." Rather, the evidence of record supports the agency's assertion
that appellant was only entitled to a seniority date of July 9, 1994,
and that the agency agreed to settle the grievance for other reasons.
At worst, the record establishes that the Postmaster genuinely was
unsure of the proper seniority date and determined the date (whether
accurately or not) only after seeking and following the advice given
him by the Labor Relations Office. Accordingly, the record does not
permit an inference that the Postmaster's articulated reasons for the
seniority date assigned were a pretext to mask retaliation. In this
regard, the Commission notes that the AJ did not find the Postmaster's
testimony incredible on this point. While the Commission has held that
credibility determinations of an AJ require more deference than other
findings of fact, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 496
(1951), it has also stressed that such deference is not automatic and will
be deferred to only to the extent it is based on personal observation of
the demeanor and conduct of the witness at the hearing, rather than the
inherent logic or consistency of the testimony. Watkins v. U.S. Postal
Service, EEOC Request No. 05910636 (September 19, 1991).
Because the Commission finds that the evidence does not support a
finding that the agency intentionally assigned appellant an inaccurate
seniority date, the Commission finds that appellant cannot establish
that the agency's articulated reason for denying her window training
(i.e. that the selected clerks had greater seniority) was pretextual.
To the extent that appellant's contentions are viewed as claiming that
the agency harassed her in retaliation for her EEO activity,
the Commission first notes that where, as in this case, the complainant
alleges that an adverse action was threatened in order to harass her,
the allegation cannot be dismissed under 29 C.F.R. �1614.107(e) since it
has already affected the complainant. See Analysis of Section 107(e) of
29 C.F.R. Part 1614, 57 Fed. Reg. at 12643 (April 10, 1992). In order to
establish a case of harassment that creates a hostile working environment,
the harassment complained of generally must be on going and continuous
in order to constitute unlawful discrimination. A few isolated incidents
are usually not sufficient to show harassment. Jackson v. Department of
the Air Force, EEOC Request No. 05960524 (April 24, 1997). Therefore,
in assessing whether the alleged harassment constituted a continuing
violation, the conduct at issue must be viewed in the context of the
totality of the circumstances, considering, inter alia, the nature
and frequency of offensive encounters and the span of time over which
the encounters occurred. McGivern, citing Rabidue v. Osceola Refining
Co., 805 F.2d 611, 620 (6th cir. 1988); Gilbert v. City of Little Rock,
722 F.2d 1390, 1394 (8th Cir. 1993). However, in light of the finding
that appellant failed to establish that any of the concrete actions
challenged in her other allegations were retaliatory, the Commission is
not persuaded that the Postmaster unlawfully harassed her when he stated
that, until she was scheme qualified, her hours might be reduced.
Accordingly, after a thorough review of the record (including arguments
and evidence not specifically addressed herein), it is the decision of
the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request
containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 10, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
1Appellant also alleged discrimination based on the physical
disability of pregnancy. The Pregnancy Discrimination Act
(Pub.L. 95-955) is an amendment to Title VII which prohibits,
among other things, discrimination in employment because of sex.
This Act makes it clear the "because of sex" or "on the basis
of sex," as used in Title VII, includes "because of or on the
basis of pregnancy, childbirth or related medical conditions."
Therefore, Title VII prohibits discrimination in employment
against women affected by pregnancy or related conditions.