0120080976
07-24-2009
Ida B. Budet, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ida B. Budet,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080976
Hearing No. 570-200600092X
Agency No. 1K221001005
DECISION
On December 13, 2007, complainant filed an appeal from the agency's
November 15, 2007 final order concerning his equal employment opportunity
(EEO) complaint alleging 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's Merrifield Processing and
Distribution Center, in Merrifield, Virginia. On March 23, 2005,
complainant filed an EEO complaint alleging that she was discriminated
against on the basis of sex (female) when:
1. on November 17, 2004, her supervisor took gum from his mouth
and placed it on her arm;
2. on November 17, 2004, her supervisor made comments about her
smoking;
3. on an unspecified date, her supervisor made sexual comments that
were directed towards her.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on March 7, 2007, and on
September 6, 2007, issued a decision in favor of the agency.
In her decision, the AJ noted that the complaint should be considered
as one claim of harassment, instead of individual allegations of
discrimination. In that regard, the AJ noted that complainant alleged
that her supervisor harassed her when he placed a piece of gum on her arm,
commented about her smoking, asked her if her sick leave was related
to a gynecological appointment, and asked her if she was pregnant.
Complainant also alleged that her supervisor stated that he could
"change her," referring to her sexual orientation.
The AJ noted that the supervisor named in the complaint did not provide
an affidavit for the investigation, and did not appear for the hearing.
Accordingly, the AJ drew an adverse inference, finding that the incidents
occurred as complainant alleged. The AJ found that, although the record
revealed complainant and her supervisor often spoke informally at work,
the conduct as described in the complaint was unwelcome. The AJ also
found that the only comments that were based on complainant's sex were the
comments about her doctor's appointment, and that he could "change her."
The AJ found, however, that even assuming that the events occurred
as alleged, the conduct was neither severe nor pervasive, and would
not have created a hostile work environment for a reasonable person
in complainant's position. Finally, the AJ found no dispute that,
subsequent to complainant's complaint about the incident, a management
official took action against the supervisor, and complainant did not
report that the conduct continued.
On November 15, 2007, the agency issued a final order adopting the
AJ's finding that complainant failed to prove that she was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant submitted documents related to a 2004 union
grievance, but did not otherwise submit argument related to this appeal.
The agency did not respond to the appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
After a review of the record, we find there is substantial evidence in
the record to support the AJ's finding of no discrimination. We agree
that, even assuming the facts as alleged are true, complainant failed
to present sufficient evidence that she was subjected to a hostile work
environment because of her sex. No doubt the conduct was inappropriate,
but we do not find complainant was subjected to severe and pervasive
conduct which rose to the level of a hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 24, 2009
Date
1 In a final decision dated April 5, 2005, the agency dismissed the
complaint for failure to state a claim. Complainant appealed the
decision. The Commission reversed the agency's decision and remanded
the matter for investigation. Budet v. United States Postal Service,
EEOC Appeal No. 01A53997 (September 14, 2005).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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