0120111555
09-13-2012
Diana Andreacchio, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Diana Andreacchio,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120111555
Agency No. 4C-190-0028-10
DECISION
On February 1, 2011, Complainant filed an appeal from the Agency's January 21, 2011 final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the New Hope, Pennsylvania Post Office. On February 23, 2010, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment, on the bases of sex (female) and in reprisal for prior protected EEO activity, when: (1) on an unspecified date, a co-worker (C1) tossed his soda on Complainant's vehicle; (2) on December 29, 2009, C1 slammed a "knocker" into an "upright" where she was working, nearly causing her physical harm; (3) on February 16, 2010, C1 moved her container of mail; and (4) on an unspecified date, her Postmaster (P1) demanded she withdraw her EEO complaint.
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.
FINDINGS OF FACT
Claim 1 - C1 Allegedly Throwing Soda on car
The record shows that Complainant reported to P1 that C1 threw soda and ice on her personal vehicle. P1 investigated Complainant's assertions but did not find evidence to support her claims. C1 denied the allegation, explaining that he habitually threw the remains of the soda he drank on the way to work on the grass between Complainant's car and his, but he never threw anything on her vehicle. The record also shows that P1 instructed C1 to avoid this conduct in order to avoid future misperceptions about his actions. P1 received no further complaints about this issue.
Claim 2 - Knocker Collision with Upright
.
P1 investigated the incident where C1's knocker (i.e., a long, flatbed metal cart) collided with Complainant's upright (i.e., a seven foot tall metal container of packages) and found no evidence that the collision was purposeful or that it presented a serious danger of injury to Complainant, so he closed the matter by admonishing C1 to avoid running into stationary objects and to work safely. Complainant's first-line supervisor (S1) was a witness to the incident and described it as being one in which C1 was maneuvering the knocker into his work area when he hit Complainant's upright. S1 described the incident as making a loud noise that startled Complainant, but there was insufficient evidence to support the conclusion that C1 hit Complainant's upright on purpose.
Claim 3 - C1 Moved Complainant's Container of Mail
P1 testified that after considering the accounts by C1, Complainant, and a co-worker (C2), he determined that Complainant had improperly blocked access to the loading dock with her hamper, and that C1 was justified in moving it in order to gain access to an area he needed to perform his assigned duties.
Claim 4 - P1 Allegedly Demanded Complainant Drop her EEO Complaint
P1 denied yelling at Complainant, using abusive or demeaning language, or suggesting that she drop her EEO complaint. Additionally, P1 claimed that he advised C1 and Complainant to avoid conversations and interactions with each other as it was apparent there was a personal dislike between the two. P1 further advised C1 and Complainant that both he and S1 would be happy to relay any work related conversations that needed to go back and forth between them. P1 further claimed that there have been no further incidents between Complainant and C1 that he is aware of since offering this advice. P1 also asserted that he asked Complainant and C1 if they wanted to move their cases away from each other, but both stated "no," that they could avoid conflict in the future.
CONTENTIONS ON APPEAL
On appeal, Complainant restates assertions she previously raised in her EEO complaint. In addition, with respect to Claim 4, Complainant asserts that since P1 does not dispute the assertion that he met with her for approximately 90 minutes after the incident where she blocked access to the loading dock, it would be reasonable to assume that she was being threatened during this time.
Complainant also asserts that "it has come to her attention" that a Carrier (C3) had at least two "no-fault" accidents within a year. Yet, Complainant asserts that he was not placed on the "repeater list." Complainant also asserts that C3 told her that if she complained, that P1 would "get her" since P1 was well known for going after workers. According to Complainant, the information she received from C3 was enough to dissuade many workers from engaging in EEO activity.
ANALYSIS AND FINDINGS
The Agency concluded that Complainant failed to prove a prima facie case of harassment since there was insufficient evidence to support her claims. Specifically, the Agency noted that C1 denied throwing soda or ice on Complainant's car, and there were no witness testimony or other evidence supporting either person's version of events. The Agency also noted that management officials conducted an independent investigation into the matter, and concluded that there was no way to substantiate Complainant's claim based on the available evidence. In addition, the Agency noted that the record indicates that C1 was moving a heavy rolling piece of equipment which hit a stationary object near Complainant, but no one was injured. Moreover, eye witness testimony failed to support Complainant's assertion that the accident was intentional. The Agency also noted that the undisputed record shows that C1 moved Complainant's hamper so that he could access the loading dock, but C1 and Complainant dispute the length of time in which Complainant left it there. Moreover, an employee who witnessed this incident did not support Complainant's version of the events. The Agency also notes that P1 disputes Complainant's assertion that he demanded that she withdraw her EEO complaint and the record is devoid of evidence to corroborate Complainant's version of events.
Furthermore, the Agency decision concluded that the record is devoid of evidence in support of the finding that any aspect of Complainant's allegations were related to her sex or prior EEO activity. Accordingly, the Agency concluded that there is no basis on which to find discriminatory or retaliatory motives behind any of the alleged conduct. The Agency also concluded that, assuming that the evidence in the record supported Complainant's allegations such conduct was not sufficiently severe or pervasive to create a hostile, abusive, or offensive work environment or unreasonably interfered with her work performance.
We agree with the Agency's determination that Complainant failed to prove discrimination or retaliation on the part of C1 or P1. Specifically, we agree that aside from Complainant's uncorroborated assertions, the record is devoid of evidence to support the conclusion that C1 was motivated by Complainant's gender or prior EEO activity. In addition, there is insufficient evidence to conclude that P1 engaged in any conduct which could be considered retaliatory in nature.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal1, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
September 13, 2012
__________________
Date
1 Complainant's assertions on appeal are generally unpersuasive. Complainant's assertions about C3's alleged statements about his assumptions of P1's motives do not provide the additional evidence necessary to satisfy Complainant's burden of proof.
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01-2011-1555
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013