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.