0120103663
11-02-2012
Karen C. Brown, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Karen C. Brown,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120103663
Hearing No. 430-2007-00085X
Agency No. 4K-230-0049-07
DECISION
On September 9, 2010, Complainant filed an appeal from the Agency's August 13, 2010, final order 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. 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 limited duty City Carrier at the Agency's East End Station in Richmond, Virginia. On April 16, 2007, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the basis of reprisal for prior protected EEO activity when:
1. on November 27, 2006, her manager (M1) threatened her by slamming her vehicle rear-door and using harsh, abusive terms, stating he would write her up if she did not complete her duties on time;
2. on December 30, 2006, management required her to work outside her medical restrictions;
3. on December 16, 2006, her leave request form was denied;
4. on December 30, 2006, her supervisor (S1) belittled her on the workroom floor by making rude statements;
5. on December 11, 12, 19, 27, and 28, 2006, management at her facility refused to sign her PS Form 1571 for curtailed bulk mail;
6. on December 23, 2006, management did not allow her to leave early on her non-scheduled day, while other carriers were permitted to leave early;
7. on November 29, December 7, 16, and 23, 2006, management did not allow her to take days off while other carriers were permitted leave;
8. on unspecified dates she was not provided with adequate assistance on her route;
9. management misplaced her submitted leave slips for February 27 and May 20, 2007;
10. on December 27 and 29, 2006, management disapproved the amount of time she requested for the completion of her route; and
11. on April 23, 2007, she was made aware that M1 had not submitted her CA-2A (recurrence of injury) form to Injury Compensation.1
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 on June 22, 2010. Following the hearing, the AJ issued a decision, dated August 4, 2010, finding no discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant reiterates her contention that she was subjected to on-going retaliatory harassment.
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).
To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "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). 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 at 6 (March 8, 1994).
Here, we find that the AJ's determination that Complainant was not subjected to unlawful harassment is supported by substantial evidence in the record, and we find that Complainant failed to show that the Agency actions at issue either occurred as alleged or were motivated by retaliatory animus. Further, we find that Complainant failed to show that management ever required her to work beyond her medical restrictions or denied her adequate assistance. Finally, with respect to Complainant's contention that management officials "belittled" or threatened her, we note that Complainant's own witnesses provided hearing testimony that the management officials in question acted similarly toward all employees.
CONCLUSION
We AFFIRM the Agency's final order finding no discrimination.
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
November 2, 2012
__________________
Date
1 In her formal complaint, Complainant also alleged that: (12) on January 8, 2007, management failed to pay her 5.63 hours of sick leave and she was given leave without pay; and (13) on February 24, 2007, management purposefully input 8 hours of annual leave instead of sick leave and refused to correct the mistake. These claims were withdrawn as being resolved prior to the hearing and, accordingly, will not be addressed in the instant decision.
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0120103663
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103663