Gayle C. White, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01982152 (E.E.O.C. Jan. 19, 2000)

01982152

01-19-2000

Gayle C. White, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.


Gayle C. White v. United States Postal Service

01982152

January 19, 2000

.

Gayle C. White,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

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

Agency.

Appeal No. 01982152

Agency No. 4-H-335-0038-97

DECISION

Complainant timely initiated an appeal of a final agency FAD concerning

her complaint of unlawful employment discrimination on the bases of race

(Caucasian), national origin (American), color (White) and sex (Female)

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The appeal is accepted in accordance with

EEOC Order No. 960.001. For the following reasons, the Commission affirms

the FAD.

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

as a General Clerk at the agency's Vehicle Maintenance Facility in Tampa,

Florida. Complainant and a co-worker (CW1) had a history of joking,

teasing and horseplay. On September 24, 1996, CW1 contends that he was

tugging on complainant's shirt sleeve so that she would look at his work

order. Complainant's supervisor (CS) observed that complainant looked

like she was losing her breath so he told CW1 to let her go, and CW1

complied immediately. CS stated that complainant said she was alright;

talked with CW1 for a moment; and then returned to work. CS stated that

there was no indication of any harm, anger or hard feelings between the

two and that he dismissed the incident as horseplay because of the way

complainant and CW1 typically kidded around. Complainant did not mention

the incident to CS again, however, in connection with this complaint,

she accused CW1 of choking her.

On October 2, 1996, the second incident of alleged assault occurred

in the break-room. The record establishes that complainant entered the

break room and began to participate in the general 46 messing around"

and "goofing off" that took place there. The record indicates that

she and CW1 had shared food in the past and that CW1 began to covet

complainant's carrots which complainant jokingly refused to share with

him. CW1 began to scoot complainant's chair around the break-room and

challenged the other employees to steal the carrots. A second co-worker

(CW2) grabbed the bag of carrots, held them out of complainant's reach

for a moment and then returned them. All of the witnesses to this

incident stated that everyone, including complainant, was laughing and

joking and that it was all in good humor and very typical of break-room

behavior. However, complainant's humor changed after CW1 and CW2 returned

to work. When CW1 and CW2 were informed that complainant was upset,

they both apologized. She accused them of assault. CS was made aware

of the incident when complainant submitted a PS Form 3971 upon leaving

for the day. CS immediately called his supervisor and then the postal

inspection service and placed both CW1 and CW2 on emergency suspension.

Believing the agency discriminated against her, complainant sought EEO

counseling and filed a formal complaint on November 21, 1996. Complainant

alleges in her complaint that from December 1995 until October 1996,

she was subject to a ten month calculated criminal extortion, punctuated

by three violent batteries.<2> She claimed that the ten month period

was one of terror, panic and oppression. In its acceptance letter,

the agency narrowed the issue to be investigated to whether she was

offered adequate protection by management, and there is no evidence that

complainant objected. At the conclusion of the investigation, complainant

requested that the agency issue a final decision from which complainant

now appeals. Complainant did not submit a statement in support of her

appeal. The agency requests that we affirm its final decision.

After a careful review of the record, based on the standards set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253-256 (1981),

the Commission finds that complainant failed to establish a prima facie

case of discrimination on any of her alleged bases. In reaching this

conclusion, we note that none of the witnesses to the alleged assaults

corroborated complainant's version of the events, and so we find that

complainant's version of the events lacking in credibility. Moreover,

we find no support for complainant's contention that CS failed to protect

her as soon as he became aware of her discomfort, and there is no evidence

in the record from which we can infer discriminatory animus on the part

of CS, who although male, was a White, Caucasian, American.

The Commission finds that the agency did not address complainant's

allegation of ongoing harassment based on sex. 3 Based on the standards

set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in

order to prevail on her claim of harassment, complainant must prove that:

(1) she was subjected to harassment that was sufficiently severe or

pervasive to alter the terms or conditions of employment and create an

abusive or hostile environment; and (2) the harassment was based on her

membership in a protected class. See EEOC Notice No. 915.002 (March 8,

1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6;

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997). The Supreme Court stated: "Conduct that is not severe or pervasive

enough to create an objectively hostile work environment - an environment

that a reasonable person would find hostile or abusive - is beyond

Title VII's purview. " Harris, 510 U.S. at 22 (1993). Additionally, our

guidelines state that: "in defining the hypothetical reasonable person,

the Commission has emphasized that the reasonable person standard

should consider the victim's perspective and not stereotyped notions

of acceptable behavior." EEOC Notice No. 915.002 (March 8, 1994),

Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6.

The Commission concludes that complainant failed to establish that she

was subjected to harassment. There is no credible evidence of the alleged

harassment besides the two alleged assaults which we conclude were not

sufficiently severe or pervasive to create an objectively hostile work

environment since the evidence overwhelming supports a finding that the

interaction between CW1 and complainant was most properly categorized as

voluntary and friendly horseplay and that neither CW1 or CW2 had any of

the malicious or abusive intent that complainant alleges. The Commission

notes that complainant never informed anyone of the "terror, panic and

oppression" she was allegedly subjected to until she filed the instant

complaint, and not one of complainant's co-workers observed anything

out of the ordinary in her interaction with CW1 during the ten months

of the alleged harassment.

Therefore, after a careful review of the record, including evidence not

specifically addressed in this decision, we affirm the FAD's finding of

no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

January 19, 2000

__________________

Date

1In her affidavit, complainant uses the term "sexual harassment. " The

Commission finds that since the alleged incidents of harassment were not

sexual in nature, complainant's claim is most properly characterized as

one of harassment based on sex. See Meritor Savings Bank FSB v. Vinson,

477 U.S. 57 (1986).

2There is no record of complainant reporting the incident which occurred

in December 1995 and involved a handshake with CW1.