Cheryl A. Hamm, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 25, 1999
01971589 (E.E.O.C. Oct. 25, 1999)

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.