0120122208
11-20-2012
Margaret A. Gibbs, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Margaret A. Gibbs,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120122208
Hearing No. 443-201-000116X
Agency No. 4J-600-0094-09
DECISION
Complainant filed an appeal from the Agency's March 23, 2012 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 Letter Carrier Technician (T6) at the Agency's Mount Prospect Post Office facility in Mount Prospect, Illinois. On November 18, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (ankle) and in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. From June 16, 2009 and ongoing, Complainant was repeatedly harassed about her performance;
2. On August 10, 2009, the Postmaster, M1, tried to force Complainant to work 12 hours and when she refused to do so, M1 instructed Complainant to take her name off the 12-hour overtime list;
3. Complainant's name was removed from the 12-hour overtime list; and
4. M1 told Complainant that EEO's were frivolous.
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 requested a hearing and the AJ held a hearing on May 26, 2011. The AJ issued a decision on March 15, 2012.
In her Decision, the AJ found that Complainant failed to establish a prima facie case of discrimination based on either disability or reprisal because Complainant failed to identify any similarly situated employees not in her protected groups who were treated better than she was. The AJ further found that the harassment Complainant described in her complaint was the result of the Agency's need to address staffing shortages and that M1's comments to Complainant were prompted by the immediate circumstances. Specifically, the AJ observed that M1 questioned why Complainant's name was on the 12-hour overtime desired list when Complainant turned down overtime repeatedly. M1's comments regarding Complainant's prior protected activity, the AJ found, were expressed in the course of a discussion during which Complainant stated that she would file another complaint and in light of M1's knowledge that Complainant's prior complaint included an allegation against another supervisor (S1) that was determined to be unfounded because the incident occurred on a day when S1 was on leave. The AJ found that even if Complainant established a prima facie case, the Agency provided reasons for its action that Complainant did not show were false and a pretext to mask discrimination. Further, the AJ found that Complainant did not present evidence from which an inference could be drawn to establish that discrimination motivated the Agency's actions described in her complaint. The AJ found that Complainant did not prove that she was held to a different standard than were other employees.
Regarding harassment, the AJ found that Complainant did not show that her disability or prior EEO activity was the motivating cause of the Agency's actions which Complainant considered harassment. On the contrary, the AJ found that M1 and S1 discussed Complainant's ability to work as a part of their responsibility to make legitimate business decisions. Moreover, the AJ found that the incidents, taken together, did not rise to the level of harassment.
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.
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 the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For petitioner to prevail, he must first establish a prima facie case 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. Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we assume, without so finding, that Complainant is a qualified individual with a disability. We find that substantial evidence supports the AJ's finding of no discrimination. We concur with the AJ that Complainant failed to show that she was singled out because of her disability or because she previously engaged in the EEO process, when she was questioned regarding her availability for overtime and her decision to be on the 12-hour overtime desired list. Nor does the evidence show that Complainant was harassed about her performance. As the AJ noted, Complainant did not identify any employees not in her protected groups who similarly had their names on the 12-hour overtime desired list, but who did not accept overtime assignments who were not also questioned and to whom the suggestion was not also made to remove their name from the list.
Regarding claim (4), the AJ found:
When the context in which the comment was made is considered, this is not a situation in which [M1] was making any kind of threatening or harassing comment. Rather, [M1] legitimately believed that Complainant had provided false information in a past EEO, and he was responding to Complainant's statement that he had exhibited abusive conduct to her in the past causing her to file an EEO. Overall, it cannot be said that [M1's] comment is reasonably likely to deter the charging party or others from engaging in protected activity. See Nurriddin v. National Aeronautics and Space Administration, EEOC Appeal No. 01A23148 (September 30, 2004) (single derogatory comment made by the supervisor in reference to the complainant's EEO complaint did not rise above the level of a petty slight or trivial annoyance and was not actionable retaliatory conduct).
We agree with the AJ that the single comment at issue given the context in which it arose is insufficient to result in a finding of discrimination.
CONCLUSION
We therefore 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 20, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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