Indra E. Martinez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 20, 2001
01A12634 (E.E.O.C. Jun. 20, 2001)

01A12634

06-20-2001

Indra E. Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Indra E. Martinez v. United States Postal Service

01A12634

06-20-01

.

Indra E. Martinez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A12634

Agency No. 1F-918-0021-98

Hearing No. 340-99-3349X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's

appeal from the agency's final order in the above-entitled matter.

Complainant claims that the agency violated Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e, et seq., in connection with an

occurrence on June 8, 1998, that she characterized as sexual harassment.

She identified the distribution operations manager as the responsible

official. The agency investigated the complaint and thereafter referred

it to an Administrative Judge, who issued a decision of no discrimination

without holding a hearing. The agency accepted the AJ's decision in

its final order. This appeal followed.

The agency employed complainant as a parcel post distribution clerk at

its processing center in City of Industry, California. On June 8, 1998,

the distribution operations manager and four supervisors were standing

together as complainant passed them on her way out for the day. After she

passed, the distribution operations manager remarked that complainant was

going out into the parking lot to have oral sex with another employee,

or words to that effect. Although the manager made the remark outside

of complainant's earshot, she was subsequently told about it by her

ex-husband, and by a female co-worker. After investigating the incident,

the agency fired the distribution operations manager in August 1998.

The Commission has repeatedly held that, unless the conduct complained

of is very severe, a single incident will not be regarded as sexual

harassment. Hayes v. United States Postal Service, EEOC Appeal

No. 01954703 (January 23, 1998), request for reconsideration denied EEOC

Request No. 05980372 (June 17, 1999); Taylor v. Department of the Army,

EEOC Appeal No. 01942699 (March 7, 1996), request for reconsideration

denied EEOC Request No. 05960405 (August 7, 1997). Policy Guidance on

Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 (March

19, 1990), at p. 16 & nn. 23-24. Where, as here, the occurrence is a

one-time remark, which complainant learned about second-hand, and for

which the agency immediately took corrective action, its effects are not

severe enough to rise to the level of sexual harassment. Moregenstern

v. Department of the Navy, EEOC Appeal No. 01976827 (August 19, 1999).

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final order,

because the Administrative Judge's issuance of a decision without a

hearing was appropriate and a preponderance of the record evidence does

not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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

___06-20-01_______________

Date