01993961
07-05-2000
Debra Perkins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.
Debra Perkins v. United States Postal Service
01993961
July 5, 2000
Debra Perkins, )
Complainant, )
) Appeal No. 01993961
v. ) Agency No. 4H330168996
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Region), )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the
agency 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.on
the basis of sex (female). <1> The appeal is accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified at 29 C.F.R. � 1614.405).
On September 3, 1996 complainant filed a complaint of discrimination.
The agency accepted the complaint for investigation and defined the scope
of the investigation as follows, � you were issued a seven-day suspension
after being sexually harassed.� On March 27, 1999, complainant received
the final agency decision (FAD), finding no discrimination. The agency
concluded that complainant failed to establish a prima facie case.
It is from this decision that complainant now appeals.
BACKGROUND
Complainant's supervisor (RMO: male) issued complainant a seven-day
suspension on May 24, 1996. Complainant maintains that the suspension
was punitive, resulting from her rejection of RMO's several advances.
While working with RMO, complainant states that she was subjected to years
of harassing advances and punished for her rejection of those advances.
In 1986 complainant and RMO were employed as letter carriers in the
agency's Hollywood Hills Station. Complainant alleges that RMO's
harassing conduct began when RMO called her at home, requested a
meeting, stated that he had a list of people he wanted to get with and
that complainant was on his list. Complainant purportedly told RMO
that they could not get together, that she was not interested in him,
and asked him not to call her anymore.
Complainant eventually left the Hollywood Hills Station and transferred
to the Downtown Station. From the Downtown Station, complainant was
detailed to the South Florida Annex where RMO was the facility station
manager and complainant's second level supervisor. After working at
the South Florida Annex for a few months, complainant reports that RMO
began watching her closely and making verbal advances.
On one occasion, sometime between December 1995 and January 1996, RMO
held a staff meeting. After the meeting, RMO allegedly gave women staff
members social hugs and kisses and gave the male staff members handshakes.
Later that day, complainant alleges that RMO approached her again, turned
her around, gave her another hug and kissed her on the neck and cheek.
While allegedly in shock from RMO's behavior, complainant recalls a
coworker saying �God damn all those kisses.�
On April 3, 1996, RMO allegedly made another advance by asking complainant
when they could get together. Complainant says that she rejected RMO's
advance and asked him to leave her alone. In response to her rejection
of RMO's advance, complainant says that her immediate supervisors began
questioning her need for street assistance and following her as she
performed her duties. Complainant contends that RMO subjected her to
hostile treatment, undermined her performance and made false statements
about her to other supervisors.
When calling in to report that she would be late in completing her
assigned route, complainant claims that she was yelled at by her
intermediate supervisor and not allowed the same leniency that other
carriers were given. Complainant stated that she was even questioned on
her use of street assistance. As a result of one supervisor's treatment,
complainant filed a grievance. Complainant alleges that this action
compounded RMO's anger with her. On May 24, 1996, RMO allegedly yelled
at complainant because she filed the grievance.
Complainant alleges that a carrier (AC1: female) at the South
Florida Annex, was romantically involved with RMO. As a result of
their involvement, complainant alleges that AC1 received preferential
treatment from RMO. Complainant maintains that AC1 was not disciplined
for attendance deficiencies and given preferential scheduling. RMO denies
any sexual relationship with AC1.
Complainant also alleges that RMO made harassing, night-time telephone
calls to her home. The caller never identified himself and remained
silent. Nevertheless, complainant holds that RMO is responsible for the
calls, stating that he got her home telephone number from a sick leave
notice. Complainant alleges that during one of these harassing telephone
calls, she told the caller that she knew who the caller was and threatened
to call the police, which she later did. Complainant reports that the
next day RMO refused to look her in the eye and seemed embarrassed.
Complainant changed her telephone number after these incidents.
According to complainant, she was last harassed by RMO on May 24,
1996, when she was issued a seven-day suspension. On that day,
complainant reported to RMO for her assignment. Instead of beginning
her assignment immediately, complainant stopped to talk to a coworker.
Noticing complainant's conversation, RMO again instructed complainant to
report to her duty location immediately. A verbal confrontation ensued
and complainant was ultimately issued a seven-day suspension for failure
to follow instructions.
ANALYSIS AND FINDINGS
The Supreme Court has established that sexual harassment in the
workplace violates Title VII and is actionable as a form of sex
discrimination. Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). To
establish a violation of Title VII based on sexual harassment, complainant
must show: (1) that she belongs to a statutorily protected group; (2)
that she was subjected to sexual harassment in the form of unwelcome
sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature; (3) that the harassment complained of was
based on sex; and (4) that submission to such conduct was made either
explicitly or implicitly a term or condition of complainant's employment
or was used as a basis for employment decisions affecting complainant,
or the conduct unreasonably interfered with her work performance or
engendered an intimidating, hostile or offensive working environment. 29
C.F.R. � 1604.11(a); Quintero v. United States Postal Service, EEOC
Appeal No. 01960836 (April 21, 1998); Jones v. Flagship International,
793 F.2d 714, 719-722 (5th Cir. 1986); Henson v. City of Dundee, 682 F.2d
897, 903-905 (11th Cir. 1982); see also Bundy v. Jackson, 641 F.2d 934
(D.C. Cir. 1981); Katz v. Dole, 709 F.2d 251 (4th Cir. 1983).
Since complainant is alleging that she was suspended in retaliation for
rejecting RMO's advances, we recognize this complaint as harassment that
conditions concrete employment benefits on sexual favors. Such claims are
analyzed like any other case in which a challenged employment action is
alleged to be discriminatory. Enforcement Guidance: Vicarious Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999) at 10.
As to complainant's claim that RMO suspended her for rejecting his alleged
advances, we note that complainant identified a coworker (AC2: female)
who was not disciplined, but who allegedly engaged in the same conduct.
According to complainant, AC2 was loud and had a verbal confrontation
with RMO but was not disciplined. Complainant further suggests that
AC2 accepted RMO's sexual advances and therefore was not disciplined. We
find complainant's comparison with AC2 unpersuasive. RMO denies having
a verbal confrontation with AC2. On the current record, we are unable to
determine if AC2 actually had a confrontation with RMO. Since the record
does not otherwise support complainant's allegations with respect to AC2,
and since complainant was unable to identify any specific information
about the alleged confrontation, the comparison between complainant and
AC2 fails.<2>
We have also considered complainant's general harassment claim, we note
that RMO denies ever making sexual advances toward complainant. We have
therefore reviewed the record for supporting evidence of complainant's
claim. On the basis of our review we find that complainant has failed to
establish that RMO sexually propositioned her. The only evidence in the
record as to whether RMO made unwelcome sexual advances is complainant's
testimony that he did these things, and RMO's testimony that he did not.
On the other hand, the agency articulated a legitimate, nondiscriminatory
reason for issuing complainant a disciplinary suspension namely,
insubordination and disruptiveness. It is undisputed that complainant's
suspension immediately followed a disruptive confrontation after
complainant was instructed for the second time to report to her
assigned work station. We find that complainant failed to establish by
a preponderance of the evidence that her suspension was related to her
rejection of RMO's alleged advances. Accordingly, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if 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:
July 5, 2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2 The record does indicate that AC2 was disciplined, by issuance of a
Letter of Warning, for failure to follow instructions. The record reveals
that AC2 was once issued discipline by her immediate supervisor and that
RMO later concurred. We thus find that complainant's comparison with
AC2 fails because AC2 is not similarly situated to complainant.