Frances Lopezv.United States Postal Service 01A03097 10-19-00 . Frances Lopez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 19, 2000
01a03097 (E.E.O.C. Oct. 19, 2000)

01a03097

10-19-2000

Frances Lopez v. United States Postal Service 01A03097 10-19-00 . Frances Lopez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Frances Lopez v. United States Postal Service

01A03097

10-19-00

. Frances Lopez,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03097

Agency No. 4F945004599

DECISION

INTRODUCTION

Frances Lopez (complainant) initiated a timely appeal on March 1,

2000, with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) concerning her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> The

Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency correctly determined that

complainant was not discriminated against on the bases of sex (female)

and national origin (Mexican) when she was subjected to offensive comments

made by a male co-worker.

BACKGROUND

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

as a Letter Carrier at the agency's Northern California Processing Center.

Over the course of six years, dating from 1993 through 1999, complainant

reported and documented to management the alleged offensive remarks made

by a male colleague.<2> Specifically, the complainant states that on

November 19, 1998, the co-worker called her a �fat ass.� When questioned

by management of the alleged offensive comments made to complainant,

the co-worker denied making any such statements. Although there were no

witnesses to corroborate complainant's allegations, management disciplined

the alleged harasser by issuing him a Letter of Warning on November 30,

1998, and a Notice of 14 Day Suspension for Conduct Unbecoming a Postal

Employee on June 2, 1999. In addition, her immediate supervisor's

affidavit states that complainant was offered the opportunity for

reassignment or relocation, which she declined to accept.

Believing she was a victim of repeated sexual harassment, complainant

sought EEO counseling and subsequently filed a formal complaint on

January 28, 1999. In her complaint, complainant alleged that she was

discriminated against on the bases of sex (female) and national origin

(Mexican) when: from November 16, 1998, through November 19, 1998,

she was subjected to offensive comments by a co-worker and management

failed to take appropriate action to stop the harassment.

At the conclusion of the investigation, complainant was informed

of her right to request a hearing before an EEOC Administrative

Judge or alternatively, to receive a final decision by the agency.

When complainant failed to respond within the time period specified in

29 C.F.R. � 1614, the agency issued a final decision.

In its final agency decision, the agency concluded that complainant was

not discriminated against on the bases of and sex and national origin.

On appeal complainant contends that management failed to take appropriate

action in ceasing the alleged sexual harassment and asks the Commission

to reverse the agency's decision.

ANALYSIS AND FINDINGS

In addressing complainant's claim of discrimination based on sex and

national origin, the Commission finds it proper to analyze the complaint

as an issue of harassment resulting in a hostile work environment.<3>

It is well-settled that harassment based on an individual's sex and

national origin is actionable. See Meritor Savings Bank FSB v. Vinson,

477 U.S. 57 (1986). In order to establish a claim of harassment

under those bases, the complainant must show that: (1) she belongs to

the statutorily protected classes; (2) she was subjected to unwelcome

conduct related to her membership in those classes; (3) the harassment

complained of was based on sex and national origin; (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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In considering whether complainant has satisfied the last element, the

Commission notes that the agency is potentially liable for the harassment

if complainant can demonstrate that it was created by either a supervisor

or someone who acts in a supervisory capacity. An individual qualifies as

an employee's supervisor if: (a) the individual has authority to undertake

or recommend tangible employment decisions affecting the employee; or

(b) the individual has authority to direct the employees's activities.

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

1999)(citing Vicarious Liability for Unlawful Harassment by Supervisors,

EEOC Notice No. 915.002 (June 18, 1999)). Moreover, the harasser's

conduct should be evaluated from the objective viewpoint of a reasonable

person in the victim's circumstances. Enforcement Guidance on Harris

v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

In the present case, we find that the complainant failed to establish

a claim of harassment. Under the first prong of the aforementioned

test, complainant demonstrated membership in the protected classes

of sex (female) and national origin (Mexican). Complainant, however,

has not established that her co-worker directed the offensive remarks

towards her based on her membership in those classes or that the remarks

were based on sex and national origin. Furthermore, we find that the

incidents in question, i.e., being called �fat ass� on two occasions,

while certainly offensive, were not sufficiently severe or pervasive

to alter the conditions of the complainant's employment and create an

abusive working environment. Harris Forklift Systems, Inc., 510 U.S. 17,

21 (1993). Accordingly, the Commission finds the complainant has not

established that she was discriminatorily harassed.

CONCLUSION

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

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:

Carlton M. Hadden, Acting Director

Office of Federal Operations

10-19-00

Date

Date

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 note, however, that the scope of the complaint herein is limited

to the period between November 16 and 19, 1998.

3 The Commission notes that the agency erroneously analyzed complainant's

discriminatory issue as a disparate treatment case in finding that

complainant was not treated differently than similarly situated

individuals within her class. Complainant also misidentified her

complaint as a sexual harassment case, instead of harassment based on

sex.