01995499
03-30-2000
Kristina J. Allen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region) Agency.
Kristina J. Allen, )
Complainant, )
) Appeal No. 01995499
v. ) Agency No. 1I-551-0052-98; 1I-551-0058-98
) Hearing No. 260-99-8106X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid West Region) )
Agency. )
______________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination 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 pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). Complainant alleges that she was discriminated
against on the bases of sex (female), race (White) and in retaliation for
prior protected activity when she received a fourteen day suspension and
that she was subjected to a hostile work environment based on her sex.
For the following reasons, the Commission affirms the agency's final
decision.
The record reveals that complainant, a Distribution Clerk at the agency's
Processing and Distribution Center in Minneapolis, Minnesota, filed
a formal EEO complaint on August 28, 1998, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, during which the AJ consolidated agency case numbers
1I-551-0052-98 and 1I-551-0058-98, the AJ issued a decision finding
no discrimination which the agency adopted and from which complainant
now appeals. On appeal, complainant recasts arguments previously made
at the hearing and throughout the investigation.
Concerning the suspension, the AJ concluded that complainant failed
to establish a prima facie case of sex or race discrimination because
complainant failed to demonstrate that similarly situated employees
not in her protected classes were treated more favorably under similar
circumstances. The AJ further concluded that complainant established a
prima facie case of retaliation but failed to prove that the agency's
legitimate, nondiscriminatory reason for suspending complainant was a
pretext for retaliation. The AJ found that the incidents comprising
complainant's claim of a hostile work environment included not being
allowed to work with her boyfriend, being placed on the aforementioned
suspension and not being told about a "free" lunch.<2> However, the
AJ did not address whether the alleged harassment occurred because of
complainant's membership in a protected class or whether the incidents
were sufficiently severe or pervasive to create a hostile work
environment.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Upon review, the Commission concurs with the AJ's finding that complainant
failed to establish a prima facie case of race or sex discrimination
regarding the suspension. There is no evidence which would indicate that
race was a factor in the responsible management official's decision to
suspend complainant, and we note that complainant was suspended alongside
a male employee for the very same infractions. We also agree with the
AJ that complainant failed to prove that it was retaliatory animus and
not her conduct which motivated the responsible management official to
issue the suspension.
The Commission further finds that complainant's hostile environment claim
fails since there is no evidence that the alleged harassment was based
on sex. Specifically, we note that when complainant was separated from
working with her boyfriend, he was also separated from working with her;
when she was suspended, her male co-worker was also suspended for the same
infractions; and that the incident involving the "free" lunch involved
both male and female employees being treated similarly. Accordingly,
we find that complainant failed to establish a prima facie case of sex
based harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance
on Harris v. Forklift Systems, Inc.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
March 30, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 At the hearing, testimony revealed that the alleged "free" lunch
occurred on an employee appreciation day, and although not entirely clear
from the record, it appears that the employees were permitted to attend
in shifts so as to avoid overcrowding.