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.