01A33126
03-22-2000
Mark D. LaBiche, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Mark D. LaBiche v. United States Postal Service
01A33126
March 22, 20004
.
Mark D. LaBiche,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A33126
Agency No. 4G-700-0041-02
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk, at the agency's New Iberia Post
Office in New Iberia, Louisiana. Complainant sought EEO counseling and
subsequently filed a formal complaint on May 31, 2002, alleging that he
was sexually harassed, when on October 5-6, 2001, management failed to
take appropriate corrective action, when a female co-worker subjected
him to sexual harassment, by cursing at him and referring to him as �gay.�
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to support his
claim of hostile work environment sexual harassment. Specifically,
the agency found that both complainant and his female co-worker,
were involved in a verbal confrontation during which both of them
made derogatory comments about each other. The agency concluded that
this single isolated incident did not rise to the level of actionable
sexual harassment. The agency also found that management conducted
an investigation into complainant's allegations and took appropriate
action. Specifically, the agency found that complainant's supervisor
met with complainant and his female co-worker, and that both employees
were advised that hostilities in the work place would not be tolerated,
and were advised to treat each other with dignity and respect. Finally,
the agency found that did not report any further harassment.
On appeal, complainant contends that he was subjected to a pattern
of harassment from October 5, 2001 to the day he filed his complaint,
which was not a single incident of harassment. The agency requests that
we affirm its FAD.
ANALYSIS AND FINDINGS
To establish a prima facie case of sexual harassment, complainant must
show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to unwelcome conduct related to his gender, including sexual
advances, requests for favors, or other verbal or physical conduct of a
sexual nature; (3) the harassment complained of was based on sex; (4)
the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. See Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, the Commission agrees with the agency that
complainant failed to establish a prima facie case of sexual harassment.
Specifically, the Commission finds that the preponderance of the
evidence does not establish that the conduct reported to management was
so severe or pervasive so as to create an intimidating, hostile, work
environment. The Commission has held that a single incident or group
of isolated incidents will no be regarded as discriminatory harassment.
See Walker v. Ford Motor Co., 684 F. 2d 1355 (11th Cir. 1982). We note
that complainant argued on appeal that he was subjected to a pattern
of sexual harassment since October 2001; however, the record does not
support a finding that complainant ever reported any other incident
besides the one at issue herein to management's attention. Therefore,
we find that there is no basis for imputing liability to the agency.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
March 22, 20004
__________________
Date