01971589
10-25-1999
Cheryl A. Hamm, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cheryl A. Hamm v. United States Postal Service
01971589
October 25, 1999
Cheryl A. Hamm, )
Appellant, )
) Appeal No. 01971589
v. ) Agency No. 1E-871-1041-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant initiated an appeal to the Equal Employment Opportunity
Commission (Commission) concerning her allegation that the agency violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. The appeal is accepted by the Commission in accordance with
the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether appellant has established that she
was discriminated against based on sex when she was allegedly sexually
harassed.
BACKGROUND
Appellant filed a formal complaint in September 1995 alleging that she
had been discriminatorily harassed based on sex and mental disability
(unspecified). During the investigation, appellant, in effect,
modified the allegation to one of sexual harassment.<0> Appellant did
not thereafter request a hearing and the agency issued a final decision
(FAD) dated November 6, 1996, finding no discrimination. It is from
this decision that appellant now appeals.
During the period in question, appellant was employed as a Distribution
Clerk at the Processing and Distribution Center (the Facility) in
Albuquerque, New Mexico. Appellant's sexual harassment allegation
encompasses incidents dating back to the mid-1980s, and the first one
she cites involved a stripper who performed at a co-worker's birthday
party. Although appellant did not witness this incident, she states
that she overheard a number of crude comments made by co-workers who
had witnessed it. The second example appellant cites was a management
official who, according to appellant, used suggestive body language when
he saw a customer he found attractive. Appellant indicated that these
incidents occurred between 1986 and 1991.
Appellant next identifies two incidents that occurred in 1993. The first
of these was a conversation appellant overheard in which two of her
co-workers were discussing a woman's undergarments. The second incident,
which was contemporaneous with the first, involved a co-worker who had
displayed lewd postcards. Appellant complained to the Senior Plant
Manager (SPM) about both incidents, and, in response, the postcards were
removed and the Facility's employees were given stand-up talks regarding
sexual harassment.
The final two incidents cited in appellant's affidavit occurred in
August 1995 and were the impetus for her complaint. Appellant states
that on August 10, 1995, she found two cassette covers on the Small
Parcel Bundle Sorter Machine which had pictures of naked women on them.
Appellant states further that, a day or two later, she overheard one of
the Mailhandlers make a crude comment in reference to a new management
directive. The SPM testified that, when he learned about these incidents,
he "issued additional instructions regarding sexual harassment to all
employees in the [Facility]."
Attached to appellant's affidavit is a letter which postdates the
investigation of her complaint and which sets forth several more
incidents regarding her claim. According to the letter, on November 27
and December 5, 1995, appellant saw two pictures (one from a magazine, one
from a catalogue) of scantily clad women that had been taped to machines.
This letter also states that on December 12, 1995, a co-worker made a
lewd comment in appellant's presence.
ANALYSIS AND FINDINGS
It is well-settled that sexual harassment in the workplace constitutes an
actionable form of sex discrimination under Title VII. Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of sexual harassment, appellant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct
related to her gender, including sexual advances, requests for favors, or
other verbal or physical conduct of a sexual nature; (3) the harassment
complained of was based on sex;<0> (4) the harassment had the purpose
or effect of unreasonably interfering with her work performance 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). 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 (March 8, 1994).
Even assuming that appellant is able to satisfy elements 1 through 3,
the Commission finds that she has not satisfied element 4. Specifically,
we find appellant has not established that the challenged conduct was
"sufficiently severe [and] pervasive to alter the conditions of [her]
employment and create an abusive working environment." Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). To the extent the incidents cited
by appellant occurred over a number of years, they are more accurately
viewed as isolated incidents rather than pervasive, ongoing harassment.
Furthermore, the Commission finds that these incidents do not rise
to the level of creating a hostile work environment. Although some
of the incidents were offensive, none of them appear to have been
directed at appellant in order to harass her. See Policy Guidance on
Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 at 17
(March 19, 1990).<0> The agency also removed the lewd postcards when
they were brought to its attention. Finally, we would note that the
agency has been placed on notice that these acts are occurring within
its facility, that it has a duty to ensure that the acts do not recur,
and that if it fails to effectively ensure that these acts are stopped,
it may be held liable for sexual harassment in the future. Accordingly,
we find appellant has not established that she was sexually harassed.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against her as alleged.
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:
10-25-99
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 Specifically, in articulating her harassment allegation, appellant's
affidavit focuses on incidents that are sexual in nature. In this regard,
although appellant alleged in her complaint that she had also been
harassed by being given hard work assignments and a critical evaluation,
she did not pursue either of these allegations in her affidavit.
02 In addition to considering conduct that is explicitly sexual in
nature, the Commission will consider other conduct or comments which
are related to the complainant's gender.
03 Although being singled out is not a prerequisite to establishing a
hostile environment, the Policy Guidance states that it is a factor to
be considered in determining the severity of the challenged conduct.