Matthew R. Sieminski, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 10, 2003
01A22652 (E.E.O.C. Mar. 10, 2003)

01A22652

03-10-2003

Matthew R. Sieminski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Matthew R. Sieminski v. United States Postal Service

01A22652

03-10-03

.

Matthew R. Sieminski,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A22652

Agency No. 4C-150-0085-01

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 Letter Carrier at the agency's New Kensington, Pennsylvania facility.

Complainant sought EEO counseling and subsequently filed a formal

complaint on May 18, 2001, alleging that he was discriminated against

on the basis of sex (male) when a supervisor subjected him to a hostile

work environment.

The record reveals that complainant alleged that his supervisor routinely

hit him on the back with a letter tray, followed him to the bathroom,

followed him on his route and pinched him on the buttocks twice.

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. Complainant

requested that the agency issue a final decision.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of harassment. Specifically, the agency found that

complainant failed to demonstrate that he was subjected to unwelcome

harassment, the harassment complained of was based on his sex and the

harassment complained of affected a term or condition of employment,

and/or had the purpose of or effect of unreasonably interfering with his

work environment and/or creating an intimidating, hostile, or offensive

work environment. The FAD also found that the agency had proffered

legitimate, nondiscriminatory reasons for its action, namely: that the

supervisor admitted that he tapped all of his letter carriers on the leg

in the morning as a way of saying good morning; the supervisor denied

pinching complainant and no one ever witnessed the supervisor pinching

complainant; the supervisor denied following complainant into the men's

room and indicated that since there is only one rest room it is possible

that they were there at the same time; and the supervisor maintained

that he was frequently in complainant's work space area because he

had been told to do a daily mail count on another carrier whose mail

case is next to complainant's work area. The FAD also indicated that

the supervisor was also responsible for counting the parcels that were

next to complainant's work area so the supervisor was required to be

there for business reasons and not because of complainant. Further,

the FAD maintained that the supervisor did follow complainant around

on his route because he was conducting route inspections. The agency

maintained that the supervisor inspected sixteen other routes in addition

to complainant's. The FAD indicated that performing route inspections

was a function of the supervisor's job. Finally, the FAD found that

management took the appropriate steps to investigate the complaint,

including putting the supervisor on administrative leave until an

investigation was conducted. The FAD found that complainant failed

to establish that the agency's articulated reasons were pretext for

discriminatory animus toward complainant's sex.

On appeal, complainant contends that the supervisor continues to walk

within five feet of his backside. Complainant also maintains that one of

his witnesses has suffered retaliation from the supervisor since he helped

with complainant's case. The agency requests that we affirm its FAD.

To establish a prima facie case of sexual harassment a 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 her 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. Enforcement Guidance on Harris v. Forklift

Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

Upon review of the record, we find that complainant failed to establish

a prima facie case of sexual harassment based on the actions of the

supervisor. While the alleged conduct was unsavory and unprofessional,

we do not find that it rises to the level of unlawful harassment.

We find that complainant has failed to show that the agency's reasons

are pretext for discrimination. We find that the record shows that the

supervisor tapped the legs of all of his letter carriers with a tray

in the morning as a way of saying good morning. The record also shows

that the supervisor was conducting route inspections on many carriers

and not just the complainant. As such, we find that this behavior was

not specific to complainant and there is no evidence which indicates

that these activities were done based on complainant's sex. Lastly,

we find that incidents of alleged sexual harassment are unique in that

the case often comes down to issues of credibility. With respect to

complainant being pinched on the buttocks twice and being followed into

the men's room, we find that complainant has failed to show that the

alleged behavior was based on his sex or that it was severe or pervasive

enough to constitute a hostile work environment. We find the record

indicates that although no one actually observed complainant being

pinched on the buttocks, two witnesses testified that they noticed a

change in complainant's demeanor, and although he initially indicated

nothing was wrong, complainant later told them that the supervisor had

�goosed� him on two occasions. We note that the record indicates that

hijinx were prevalent in this office, in that, complainant was known for

pushing or shaking employees while they were using the urinal. Further,

we note that one of complainant's witnesses indicated that complainant

thought that the supervisor was always telling complainant what to do

and checking on complainant all of the time. This witness indicated that

now that the supervisor was back from administrative leave he had resumed

his practice of standing behind the witness and checking on his progress.

Therefore, we find that complainant has not shown that the supervisor's

actions were based on his sex. Finally, we find that the agency acted

promptly in responding to complainant's allegations.

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

_____03-10-03_____________

Date