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.