Denise Newels, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionSep 10, 1999
01973359 (E.E.O.C. Sep. 10, 1999)

01973359

09-10-1999

Denise Newels, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Denise Newels, )

Appellant, )

) Appeal No. 01973359

v. ) Agency No. 1F-904-1041-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision (FAD)

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the basis of sex (female), in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq. Appellant alleges she was discriminated against when

she was sexually harassed by her Acting Supervisor between September 1,

1995 and March 22, 1996. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the agency's decision is

AFFIRMED AS MODIFIED.

The record reveals that during the relevant time, appellant was employed

as a Distribution Clerk at the agency's Los Angeles, California Bulk

Mail Center. Appellant asserts that her Acting Supervisor (AS) began

sexually harassing her in September 1995, when he asked her out on a date.

In October, 1995, appellant asserts that AS asked for her home phone

number, and in November of 1995, AS commented that appellant's dress

�really brings you out.�

In addition, appellant alleges that in February of 1996, AS called

her �Baby�, and she responded by informing him that her name was not

�Baby� and that his behavior was sexual harassment. After reporting

this incident to her Union Steward, appellant stated that AS told her

because she was rude, had a bad attitude and low production numbers,

she was denied a position rotation. Appellant stated that she informed

the Manager, Distribution Operations (MDO), of AS's behavior and that she

felt she was being treated unfairly. Appellant further alleges that she

felt threatened by AS, and that because she was not allowed a rotation,

she was likely to receive an unfair evaluation based on her rejection of

AS's sexual advances. AS acknowledged that he referred to appellant as

�Babe� on one occasion, but immediately apologized and informed her that

he would never call her that again. AS further stated that appellant

gave him her home phone number when he asked for it, but that he never

asked her out or commented on her clothing.

Believing she was a victim of discrimination, appellant filed a formal

EEO complaint with the agency on June 18, 1996, alleging that the agency

had discriminated against her as referenced above. After appellant failed

to request a hearing, the agency issued a FAD, finding no discrimination.

In its FAD, the agency considered appellant's allegations under the

standard set forth in Meritor Savings Bank F.S.B. v. Vinson, 477 U.S. 57

(1986), and found that although she demonstrated that she is a member of

a protected class, she failed to establish a prima facie case of sexual

harassment or harassment based on sex. In so finding, the FAD stated that

appellant failed to demonstrate that she had been subjected to a hostile

work environment. The FAD further found that in any event, the agency

articulated legitimate, nondiscriminatory reasons for its actions, namely,

that AS was assigned to a nonsupervisory position in another unit once the

allegation of sexual harassment came to management's attention in April

of 1996. Further, the FAD noted that management investigated appellant's

allegations of sexual harassment, issued a letter of instruction to AS and

required him to attend sexual harassment and conflict resolution training.

Finally, the FAD found that although appellant was not reappointed to her

position in September of 1996, due to poor attendance and punctuality,

she failed to demonstrate that the agency's reasons were pretext for

intentional discrimination. Thus, the FAD concluded that the agency

did not discriminate against appellant based on her sex.

The Commission's "Guidelines on Discrimination Because of Sex"

identify two types of sexual harassment: (1) "quid pro quo" harassment,

where "submission to or rejection of (unwelcome sexual) conduct by

an individual is used as the basis for employment decisions affecting

such individual" and (2) "hostile environment" harassment, where "such

conduct has the purpose or effect of unreasonably interfering with an

individual's work performance or creating an intimidating, hostile,

or offensive environment." Although "quid pro quo" and hostile work

environment harassment give rise to distinct claims, "the line between

the two is not always clear and the two forms of harassment often occur

together." EEOC Policy Guidance on Current Issues of Sexual Harassment at

p. 2 (March 19, 1990). In this case, although not addressed by the FAD,

appellant appears to be raising allegations of both types of harassment.

That is, appellant asserts that she did not receive a position rotation

and was likely to receive an unfair evaluation due to her refusal to

accept AS's date invitation. Appellant also generally alleged that AS's

unwelcome advances and comments resulted overall in an intimidating and

threatening environment so as to establish sexual harassment.

We initially modify the FAD to include the finding that appellant failed

to establish a prima facie case of �quid pro quo� sexual harassment.

Appellant asserted AS asked her out, and AS has adamantly denied

this occurred. In this case, appellant has provided no evidence

corroborating her claim that AS asked her out on a date in September 1995.

She made no contemporaneous complaint and has no witness with whom she

discussed the incident or who could make relevant observations about

her demeanor afterwards. Patton v. United States Postal Service, EEOC

Appeal No. 01962729 (March 24, 1998). Further, there is no evidence

that links appellant's refusal of AS's date invitation to the denial of

an employment benefit or her ultimate failure to be reappointed at the

facility. EEOC Guidance, at 15-16. Appellant has also failed to produce

evidence, even on appeal, that she was treated less favorably than other

similarly situated employees with regard to position rotation and her

formal evaluation. Therefore, based on the lack of credible evidence that

appellant was subjected to conduct of a sexual nature, the Commission

finds she has failed to meet her burden of establishing a critical

element of a prima facie case of �quid pro quo� sexual harassment.

In addition, based on the totality of the evidence, the Commission

finds that the comments of AS as alleged by appellant are isolated

incidents which are not sufficiently severe or pervasive to rise to the

level of a hostile work environment. Faragher v. City of Boca Raton,

118 S.Ct. 2275 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17

(1993). Furthermore, the Commission finds that assuming, arguendo,

that the actions of AS such as commenting on appellant's dress and

calling her �Baby� constituted sexual harassment based on a hostile work

environment, appellant failed to establish a prima facie case regarding

these allegations because the agency took prompt remedial action when

management learned of appellant's complaints. The evidence establishes

that management was notified of AS's behavior by the Union Steward on

April 11, 1996. The MDO testified that on April 17, 1996, AS was issued

written instructions to refrain from the actions as described by appellant

and the next day was moved to another work location. On May 14, 1996,

following an investigation, AS was informed that he would no longer

serve in a supervisory position and he was required to attend Sexual

Harassment and Conflict Resolution Training in June 1996. In addition,

the record reflects that after informing AS that calling her �Baby� was

sexual harassment, AS promptly apologized and said he would not call

her that again. The Commission finds that even if the actions of AS

constituted a hostile work environment, the agency met its burden in

taking prompt remedial action, and thus appellant failed to establish

a critical element of a prima facie case of sexual harassment based

on a hostile work environment. Garcia v. Department of the Air Force,

EEOC Appeal No. 01934762 (September 12, 1994).

After a careful review of the record, and for the foregoing reasons,

it is the decision of the Commission to AFFIRM AS MODIFIED the FAD which

determined that no discrimination had occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 the 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 the 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 the 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:

September 10, 1999

_______________ ___________________________________

DATE Frances M. Hart Executive

Officer

Executive Secretariat