Eva M. Campos, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionApr 11, 2000
01973039 (E.E.O.C. Apr. 11, 2000)

01973039

04-11-2000

Eva M. Campos, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.


Eva M. Campos v. United States Postal Service

01973039

April 11, 2000

Eva M. Campos, )

Complainant, )

)

v. ) Appeal No. 01973039

)

William J. Henderson, ) Agency No. 1-G-701-1158-94

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of race (White), sex (female), 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> Complainant claims that she was discriminated

against when: (1) she was sexually harassed by a co-worker ("CW") on

May 5, 1994; and (2) her supervisor ("SV") failed to take appropriate

action after she reported the harassment. This appeal is accepted in

accordance with EEOC Order No. 960.001. For the following reasons,

we AFFIRM the agency's decision.

The record reveals that during the relevant time, complainant was

employed as a Mail Handler, at the agency's New Orleans District Office

("facility"). Complainant stated that CW had been sexually harassing

her since she came to the facility. Specifically, complainant alleged

that on May 5, 1994, CW pressed himself against her backside while she

was passing him in the aisle. Complainant stated that she then cursed

at CW, and pushed him away. Complainant stated that another employee,

approximately two feet away, witnessed the encounter. However, the

employee denied having any knowledge of the May 5, 1994 incident, or of

CW ever sexually harassing complainant. CW denied sexually harassing

complainant at any point in time. He stated that, while walking back

from his break on May 5, 1994, he passed by complainant in the aisle

but that he never physically touched her. CW stated that after he

passed complainant, she cursed and threatened him. He stated that he

was surprised by complainant's response and informed SV that complainant

cursed at him.

SV confirmed that on the date in question, CW informed her that

complainant cursed at him. She stated that she met with both employees

and advised that they could be sent home for such actions, at which

time complainant indicated that CW bumped into her. SV stated that when

she asked complainant why she did not report the incident, complainant

replied that "it did not bother her," and that CW was "always looking at

[her] funny." SV noted that CW denied touching complainant, and that

she advised CW of the seriousness of the allegation and the possible

repercussions. In addition, SV stated that both employees indicated that

they could continue working together. SV asserted that she investigated

complainant's allegation, and found no grounds for disciplining CW.

SV also acknowledged having a "vague" knowledge of complainant's prior

EEO activity, but stated that complainant did not report being sexually

harassed until after CW accused her of cursing at him.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on September 6, 1994.

After the investigation, complainant requested that the agency issue

a FAD. In its FAD dated August 21, 1995, the agency concluded that

complainant was not discriminated against based upon her race, sex,

or prior EEO activity. After complainant appealed to the Commission,

we issued a decision finding that the agency failed to fully investigate

complainant's claim of sexual harassment and directed the agency to

obtain the necessary affidavits to enable a decision on the merits.<2>

Thereafter, the agency obtained affidavits from witnesses either familiar

with the May 5, 1994 incident or the general relationship between

complainant and CW. The agency then issued its second FAD, finding

no discrimination. It is from this decision that complainant now appeals.

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 v. Vinson, 477 U.S. 57, 62-67

(1986). In analyzing sexual harassment claims, the Court has identified

two types of sexual harassment: (a) harassment that conditions concrete

employment benefits on sexual favors ("quid pro quo" sexual harassment);

and (b) harassment that, while not directly affecting economic benefits,

creates a hostile or offensive working environment. Id. In this case,

complainant alleges that she was victim of the hostile environment type

harassment. To establish a prima facie case of hostile environment

sexual harassment, a complainant 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;<3> (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 McCleod

v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,

1999) (citing 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. EEOC Enforcement

Guidance on Harris v. Forklift Systems Inc. (March 8, 1994).

After a careful review of the record, the Commission finds that

complainant failed to present sufficient credible evidence establishing

that she was subjected to sexual harassment. In reviewing the record, we

find no persuasive evidence to support complainant's assertion that CW's

conduct created a hostile environment. As for the May 5, 1994 incident,

the preponderance of the evidence does not support complainant's version

of the events. CW denies that he touched complainant. The only witness

identified by complainant denies witnessing any sexual harassment by CW on

May 5, 1994 or any other date. Further, other than complainant's vague

allegations of prior sexually inappropriate conduct by CW, the record

contains no evidence corroborating that CW engaged in inappropriate

conduct directed toward complainant.

Complainant also implies that race and reprisal were responsible for

SV's failure to act on her sexual harassment allegation. However,

after analyzing the case in light of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) and Hochstadt v. Worcester Found. for Experimental

Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222

(1st Cir. 1976), we find that failed to demonstrate that SV had any

discriminatory or retaliatory motive in her handling of complainant's

sexual harassment allegation. SV states that after she was informed of

the sexual harassment allegation, she informed CW of the seriousness

of the allegation, investigated the incident, and determined that

there was insufficient evidence to support complainant's allegations

of sexual harassment. We find that complainant failed to present any

credible evidence that would discredit SV's explanations for her actions.

Therefore, after a careful review of the record, including arguments and

evidence not specifically addressed in this decision, we AFFIRM the FAD.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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 11, 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 We also directed the agency, if possible, to consolidate all pending

sexual harassment claims filed by complainant. The agency indicated

that a Notice of Final Interview was issued with respect to the other

claims on January 20, 1994 (prior to the filing of this complaint)

and that complainant did not file formal complaints on those claims.

3 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.