01a00548
04-21-2000
Dawn Bramwell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dawn Bramwell, )
Complainant, )
) Appeal No. 01A00548
v. ) Agency Nos. 1-J-609-1072-95,
) 1-J-609-1019-96
) Hearing Nos. 210-99-6200X,
William J. Henderson, ) 210-99-6201X,
Postmaster General, ) 210-99-6493X
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of color (dark skin) and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether the agency properly determined that
complainant failed to demonstrate by preponderant evidence that she was
discriminated against based on her color and prior EEO activity.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Parcel Post Distribution Machine Operator (�Regular Clerk�) at the
agency's Bulk Mail Center in Forest Park, Illinois. Starting in March
1995, complainant felt that management, in particular her Supervisor
(Supervisor-1), was not using complainant for higher level detail
assignments, namely as a Dock Clerk. Also in December 1995, complainant
reported to the Lead Manager that she felt that her new Supervisor
(Supervisor-2) was sexually harassing her. In particular, complainant
noted that the Supervisor-2 would ask co-workers about complainant's
personal life, refuse complainant's leave requests, ask complainant to
join her at the gym, and follow complainant to the bathroom.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed two formal complaints on August
30, 1995 and March 8, 1996. At the conclusion of the investigations,
complainant received a copy of the investigative reports and requested
a hearing for each complaint before an EEOC Administrative Judge (AJ).
The AJ consolidated these two complaints and held a hearing on both of
complainant's claims on August 19, 1999. Following a hearing, the AJ
issued a Recommended Decision finding no discrimination.
As to complainant's claim of disparate treatment, the AJ concluded that
complainant failed to establish a prima facie case of color discrimination
because she failed to demonstrate that similarly situated employees
not in her protected classes were treated differently under similar
circumstances when assignments were issued. Further, the AJ found
that complainant failed to establish a prima facie case of reprisal
discrimination because she failed to show that Supervisor-1 was aware of
her prior EEO activity. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Namely, the
agency argued through testimony from the Lead Manager and Supervisor-1
that complainant's assignments as Dock Clerk diminished because her
performance in other assignments was poor; there was little need and
work for assigning employees to Dock Clerk detail; and those who were
used on detail had more seniority than complainant. The AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
In reaching this conclusion, the AJ found that complainant failed to
provide persuasive and credible evidence to rebut the agency's reasoning.
As to complainant's claim of sexual harassment, the AJ noted that
complainant did not specify if her complaint was under a hostile
environment or a quid pro quo<2> theory of harassment and reviewed her
claim under both theories.<3> Under the hostile environment theory, the
AJ found that complainant failed to establish that the acts alleged were
so serious, continuous, and pervasive as to have the purpose or effect
of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. In particular,
the AJ found that incidents such as Supervisor-2 following complainant
to the bathroom and probing questions, do not rise to the level of
severity required for proving hostile environment. The AJ found that
even if all the acts were true and taken as a whole, they �fail to rise
above the trivial and inconsequential.� Accordingly, the AJ found that
complainant did not establish a prima facie case of sexual harassment
under the theory of a hostile environment. The AJ further noted that
under a quid pro quo theory of harassment, complainant failed to show
that Supervisor-2 made any overt or implied sexual demands. Therefore,
the AJ found that complainant failed to establish that she was subject
to sexual harassment by the agency.
The agency's final decision implemented the AJ's recommended decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final decision.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that
the AJ's recommended decision summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity,
were motivated by discriminatory animus toward complainant's color,
or were sexual harassment. We discern no basis to disturb the AJ's
recommended decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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:
April 21, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date 1On November 9, 1999, revised regulations governing
the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints
pending at any stage in the administrative process. Consequently,
the Commission will apply the revised regulations found at 64
Fed. Reg. 37,644 (1999), where applicable, in deciding the present
appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The Commission notes that situations of this nature have previously
been analyzed by the Commission under a "quid pro quo" theory of
sexual harassment. The Commission's position is that "it is now
more useful to distinguish between harassment that results in a
tangible employment action and harassment that creates a hostile
work environment." Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 at 2, n. 7.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999).
3Complainant alleged in her complaint that Supervisor-2 would sexually
harass her but also claimed that Supervisor-2 suggested that if
complainant did not engage in a sexual relationship with her, she would
make her work a hostile environment.