0120090510
08-12-2011
Jacqueline R. Thomas, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Jacqueline R. Thomas,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120090510
Hearing No. 450-2008-00160X
Agency No. 1G-753-0075-07
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s October 20, 2008 final order concerning
her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processing Clerk at the Agency’s Processing and Distribution
Center in Dallas, Texas. On October 2, 2007, Complainant filed a formal
complaint alleging that the Agency discriminated against her on the bases1
of sex (female) and in reprisal for prior protected EEO activity when:
1. In May, June, and July 2007 she was sexually harassed;
2. On June 18, 2007, June 25, 2007, and August 8, 2007, she was placed
off the clock;
3. On August 5, 2007, she was moved to another department after filing
a sexual harassment complaint;
4. On November 2, 2007, she was hit in the stomach; and
5. From October 15, 2007 to October 25, 2007, she lost 10 days of work.
At the conclusion of the investigation, the Agency provided Complainant
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 September 9,
2008 and issued a decision on October 7, 2008.
Initially, the AJ determined that Complainant had not established
a prima facie case of discrimination or a hostile work environment.
Nonetheless, the AJ found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), Complainant
testified that her manager (M1) called her on May 23, 2007, and told
her in a “demanding voice” that he needed her to come to work.
Complainant testified that M1 called her again on May 29, 2007, and left
messages on both her cell and home phones. Complainant returned M1’s
phone call and testified that M1 said “Jackie baby, I need you to come
to work.” Complainant testified that she felt uncomfortable because
the comment was unprofessional. Complainant returned to work on May
30, 2007. Complainant testified that on June 3, 2007, M1 approached
her and said that he was sorry for everything that happened to her and
asked Complainant if she lived by herself. Complainant maintained that
she felt violated, but did not tell any supervisors about this incident
at the time. Complainant contended that M1 approached her several times
in June and July 2007 and called her “baby.” Complainant testified
that as a result of her sexual harassment allegations, she was moved to
a different part of the building.
M1 admitted that he called Complainant in May 2007 and used the word
“baby;” however, he testified that he never used the word again
with Complainant. Further, M1 testified that his supervisor and M2
ordered him to not go near Complainant; however, it was difficult
for him to know which machine Complainant would be working on because
she was assigned different machines during her shift. Further, as to
the time clock incident, M1 asserted that Complainant stated that she
had not been paid for her time off work and when he asked her if she
lived by herself, Complainant responded that she lived with her mother.
M1 affirmed that he told her that she should not be hurting so bad and
expressed sympathy for everything that had happened to her. M1 again
denied calling her baby. M1 testified that he had no direct involvement
with Complainant after May 29, 2007.
M2 testified that he conducted an investigation into Complainant’s
sexual harassment allegations. Complainant would not cooperate or speak
to him. M1 admitted to M2 that he used the comment in May 2007. M2
instructed M1 to refrain from using the word again to address employees.
M2 testified that he did not issue M1 a letter of warning concerning
this incident because he believed that a verbal warning was sufficient.
M2 was informed of two other incidents involving Complainant and M1:
Complainant alleged that M1 walked by her area and on another date, M1 was
in a safety meeting with Complainant and she took leave and went home.
M2 affirmed that M1 denied that the second incident occurred. M2 noted
that M1 could walk through any part of the building and Complainant
may see him; however, M1 did not speak to, interact with, or approach
Complainant. M2 testified that he turned the investigation over to the
Human Resources Manager, who forwarded it to the sexual harassment team
to determine if further investigation was needed. Regarding claim (2),
the AJ determined that the record revealed that Complainant was at work
on June 18, 2007 and June 25, 2007. Further, the record indicated that
Complainant was on sick leave on August 8, 2007.
As to claims (3) and (5), M2 moved Complainant to a different area of
the building on August 2, 2007 and, although Complainant did not object
to the move, she took off of work and did not return until October 15,
2007. Complainant testified that she attempted to return to work on
October 11, 2007; however, her medical documentation was not accepted.
Complainant was sent to the limited duty coordinator because she needed
to bring in documentation in support of her claim that she was only
to perform secretarial work but had no physical work restrictions.
The AJ determined that the record indicated that Complainant was in a
pay status on October 24 and 25, 2007 and eventually received pay for
four of these days.
As to claim (4), on November 2, 2007, Complainant testified that she
and a co-worker were returning from lunch when M1 and another co-worker
(CW1) were walking toward them. Complainant testified that CW1 reached
out his hand and she turned her body away from him. Complainant alleged
that CW1 then hit her in the stomach. Complainant testified that no
one ever spoke to her about this incident and she does not know if the
incident was ever turned over to the postal police. CW1 testified that
he and another co-worker were pulling a cart on November 2, 2007 when he
spoke to Complainant as he usually does. He believed that Complainant
had not heard him; therefore, he tapped Complainant on the shoulder and
the back of her forearm. CW1 testified that Complainant looked at him
weirdly, but he spoke and kept walking. CW1 added that he had spoken to
Complainant on a daily basis for the past seven years. M2 investigated
Complainant’s allegations and turned the matter over to the Postal
Inspector, who determined that there was not enough evidence to warrant
further investigation. M2 testified that CW1 was not taken off the
clock because no one, including the employee walking with Complainant,
corroborated Complainant’s allegations.
The AJ concluded that Complainant had presented no evidence that the
Agency’s reasons were pretextual. As a result, the AJ found that
Complainant had not been discriminated or retaliated against as alleged.
As to Complainant’s hostile work environment and sexual harassment
claims, the AJ determined that while M1’s comments were not appropriate
workplace conduct, they were isolated incidents. Further, the conduct
alleged was not sufficiently severe or pervasive to constitute a hostile
work environment. Accordingly, the AJ found that Complainant had not
been subjected to sexual harassment or a hostile work environment.
The Agency subsequently issued a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency never truly investigated
her sexual harassment allegations nor the assault by CW1. Further,
Complainant alleges that she was never actually separated from M1 and
that he continued to intrude her work area. Accordingly, Complainant
requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
Standard of Review
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. Nat’l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
Disparate Treatment
To prevail in a disparate treatment claims such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon a review of the record, the Commission finds that the AJ's
finding of no discrimination is supported by substantial evidence.
The Commission concurs with the AJ's finding that assuming arguendo
that Complainant established a prima facie case on the alleged bases,
the Agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions, as set forth above. In addition, the Commission finds
that the AJ's determination that Complainant failed to establish pretext
is supported by substantial evidence in the record. The record and facts
gleaned at the hearing fail to prove any evidence purporting to show the
Agency’s actions were pretext for discriminatory animus. Accordingly,
the Commission discerns no basis to disturb the AJ's decision.
Sexual Harassment/Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998); Cobb
v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
In the instant case, the Commission concurs with the AJ that Complainant
has not established, by a preponderance of the evidence, that she was
subjected to sexual harassment by M1. Substantial evidence in the record,
moreover, supports the AJ’s determination that the incidents alleged
were not sufficiently severe to constitute a hostile work environment,
when considered either individually or jointly. In addition, the record
supports a finding that the Agency responded to Complainant’s harassment
allegations in an immediate and appropriate manner. The record reflects
that management officials began an investigation soon after they became
aware of the alleged sexual harassment and ordered M1 to stay away
from Complainant. While the Commission finds that M1’s comments were
inappropriate, EEO laws are not a civility code. Rather, they forbid
“only behavior so objectively offensive as to alter the conditions
of the victim's employment.” Oncale v. Sundowner Offshore Serv.,
Inc., 523 U.S. 75, 81 (1998). Additionally, the Agency investigated
Complainant’s allegation that CW1 assaulted her and the matter was
turned over to the Postal Inspector who determined that further action
was not warranted as no witnesses corroborated Complainant’s claims.
Complainant has not proven that she was subjected to sexual harassment
or a discriminatory hostile work environment.
CONCLUSION
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 final Agency order because
the Administrative Judge’s ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 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 (S0610)
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 (Z0610)
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
August 12, 2011
Date
1 Complainant withdrew race (African-American) as a basis of
discrimination at the hearing. Hr’g Tr., at 29.
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0120090510
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090510