Dawn Bramwell, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 21, 2000
01a00548 (E.E.O.C. Apr. 21, 2000)

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.