01976740
10-04-1999
Freda L. Rollinson-King, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region) Agency.
Freda L. Rollinson-King, )
Appellant, )
) Appeal No. 01976740
v. ) Agency No. 4J4811107496
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest 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 bases of sex (female) and retaliation
(prior EEO activity), 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 subjected to sexual and retaliatory harassment when: (1) on
January 2, 1996, and February 22, 1996, her former supervisor (FS)
followed her while she was on her postal route and stared at her; and
(2) FS appeared at her workplace. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED AS MODIFIED.
ISSUE PRESENTED
The issue on appeal is whether the agency correctly determined that
appellant was not discriminated against due to sexual harassment and
reprisal.
BACKGROUND
The record reveals that appellant, a PS-5 City Carrier at the agency's
Strathmoor Station Post Office in Detroit, Michigan (facility), was
involved in a consensual relationship with AS, and the relationship was
terminated in December of 1994. Following EEO allegations of sexual
harassment by appellant, FS was reassigned to Springwells Station in
Detroit in February of 1995, and both parties were informed by the
Customer Service Manager (CSM) in a letter dated May 18, 1995, not to
have contact with each other. Appellant testified that she subsequently
observed FS while she was on her postal route on January 2, 1996, and
twice observed FS riding by and staring at her while she was on her route
in February of 1996. Appellant further alleges that FS had appeared at
the facility, and that despite several EEO complaints, no action was taken
by the agency. Believing she was a victim of discrimination, appellant
filed a formal EEO complaint with the agency on October 8, 1996, alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation, appellant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) Administrative
Judge (AJ). The agency determined that appellant's hearing request was
untimely, and in accordance with 29 C.F.R. � 1614.110, issued a FAD.
In the FAD, the agency determined that appellant failed to establish
a prima facie case of sexual harassment caused by a hostile work
environment. The FAD found that despite appellant's allegations that FS
appeared at the facility after he was given instructions to avoid contact
with her, none of the witness testimony confirmed specific instances
of sexual harassment by FS.<1> The FAD noted FS's denial of the sexual
harassment allegations, and his testimony that he had not been prohibited
from going to the facility until he received instructions not to from the
Acting CSM in August of 1996. The FAD also found that appellant failed
to establish a prima facie case of reprisal discrimination. The FAD
found that appellant failed to demonstrate that the agency took adverse
action against her which followed her protected EEO activity in time and
manner such that retaliatory motive could be inferred.<2> As a result,
the FAD concluded that appellant failed to establish discrimination on
either of her allegations. Appellant has made no contentions on appeal,
while the agency stands on the record and requests that the Commission
affirm its FAD.
ANALYSIS AND FINDINGS
EEOC Regulations provide that harassment on the basis of sex is a
violation of Title VII. 29 C.F.R. � 1604.11. The U.S. Supreme Court
has held that a violation of Title VII may be predicated on either of
two types of sexual harassment: (1) harassment that conditions concrete
employment benefits in return for sexual favors, i.e., quid pro quo
sexual harassment; and/or (2) harassment that, while not resulting in
an economic injury, is severe or pervasive enough to create a hostile
or offensive work environment. Meritor Savings Bank F.S.B. v. Vinson,
477 U.S. 57, 62-67 (1986). In order to establish a prima facie case
of hostile environment sexual harassment, appellant must show that:
(1) she belongs to a protected class; (2) she was subjected to sexual
harassment in the form of unwelcome sexual advances, requests for sexual
favors, or other verbal or physical conduct of a sexual nature; (3) the
harassment was based on sex; and (4) the harassment affected a term or
condition of employment, and/or had the purpose or effect of unreasonably
interfering with her work environment and/or creating an intimidating,
hostile, or offensive work environment. Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Hostile environment claims generally require
a showing of a pattern of offensive conduct unless the single incident is
"unusually severe." See EEOC Policy Guidance on Current Issues of Sexual
Harassment at 15-16 (March 19, 1990).
We agree with the FAD's findings that appellant failed to establish
a prima facie case of hostile work environment sexual harassment.
Initially, we note that while FS conceded he was present at the facility,
no witness confirmed any specific instance of sexual conduct or sexual
harassment by FS toward appellant. In addition, we find that appellant's
allegations that AS appeared at the facility and was present while she was
on her postal route fails to establish that she was subjected to sexual
harassment in the form of unwelcome sexual advances, requests for favors
or other verbal or physical conduct of a sexual nature, and further,
that but for appellant's sex the harassment complained of would not have
occurred. Newman v. Department of the Navy, EEOC Appeal No. 01964330
(January 4, 1999). Further, the Commission finds that the incidents
as alleged by appellant are not sufficiently severe or pervasive enough
to create an abusive working environment. Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993). As such, we agree with the FAD that appellant
has failed to demonstrate a prima facie case of sexual harassment based
on a hostile work environment.
Further, while the FAD also addressed appellant's allegations under a
retaliation standard for disparate treatment, the Commission finds that
appellant in fact alleged that after filing her initial EEO complaints
of sexual harassment in 1995, she was subjected to incidents by FS at
the facility and on her route which created a hostile work environment
(i.e., harassment) based on retaliation.<3> The Commission has held
that the statutory retaliation clauses prohibit �any adverse treatment
that is based on a retaliatory motive and is reasonably likely to
deter the charging party from engaging in protected activity.� EEOC
Compliance Manual, Notice No. 915.003, Section 8 on "Retaliation",
at 8-14, 8-15, 8-16 (May 20, 1998). Further, a few isolated incidents
are usually not sufficient to show a hostile work environment. Harris,
supra; Banks v. Department of Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995). After a review of the record, the
Commission finds that appellant failed to establish a prima facie case
of retaliatory harassment. In so concluding, we note that appellant
failed to provide corroborative evidence that the incidents with
FS occurred as alleged, that his behavior was unlawfully motivated
by retaliatory animus or that his actions were intended to harass,
annoy or intimidate appellant from utilization of the EEO process.
We further find that the actions of FS were not severe or pervasive
enough so as to constitute a hostile work environment as contemplated
by the regulations and the Commission's Guidelines. Harris, supra.
Finally, despite appellant's assertion that the agency took no action
after she reported the alleged incidents of harassment, FS was notified
verbally and by letter to avoid any contact with appellant and to stay
away from the facility and appellant's postal route.
CONCLUSION
Therefore, after a careful review of the record and arguments and evidence
not discussed in this decision, the FAD is AFFIRMED AS MODIFIED.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 this 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 this 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 this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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:
October 4, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat1 FS testified
that he lives adjacent to appellant's
postal route and was at the facility
once but did not see appellant or
attempt to make contact with her.
2 The Commission notes that although the FAD found that appellant failed
to establish a prima facie case of reprisal discrimination, as we discuss,
infra, appellant in fact alleged that she was subjected to incidents of
retaliatory harassment after filing her initial EEO complaints.
3 While the FAD found that FS did not know about appellant's EEO
activities at the time the alleged events of harassment occurred in
January and February of 1996, the record reflects that appellant initiated
contact with the agency in March of 1995 to report FS's behavior, and
he was notified of her complaints in a letter from the CSM dated May
18, 1995. See Investigative Report, Exhibits 8-12.