Myung Y. Ashley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionDec 10, 2009
0120080151 (E.E.O.C. Dec. 10, 2009)

0120080151

12-10-2009

Myung Y. Ashley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.


Myung Y. Ashley,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120080151

Hearing No. 451-2007-00122X

Agency No. 1G-782-0026-06

DECISION

On October 10, 2007, complainant filed an appeal from the agency's

September 5, 2007, 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., and the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final order finding no discrimination.

ISSUES PRESENTED

Whether complainant was subjected to discrimination based on her race,

national origin, age, or sex.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a General Expediter at the agency's Midland, Texas Processing and

Distribution Center. The record reveals that, upon returning from a

vacation on October 1, 2006, complainant learned from a contract truck

driver that a co-worker had said to him, "[D]on't help [complainant] count

mail anymore because she will not give you any." Complainant immediately

reported this incident, and also reported an incident about overhearing

a conversation regarding a "Girls Gone Wild" video to management. 1

An investigation was immediately launched. After a pre-disciplinary

meeting, the co-worker was charged with "Misconduct-Engaging in Conduct

Characterized as Sexual Harassment by a Co-Worker." He was suspended

for seven calendar days.2 After the suspension, the coworker returned

to his bid position. Complainant was instructed to alert management if

any further incidents occurred. Complainant expressed disappointment

that the coworker was returning to his position.3

On December 11, 2006, complainant filed an EEO complaint alleging that

she was discriminated against on the bases of race (Asian), national

origin (Korean), sex (female), and age (50) when she was subjected to

sexual harassment and/or a hostile work environment.

At the conclusion of the investigation, complainant was provided 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. Prior to the hearing, the agency filed a motion for

findings of fact and conclusions of law without a hearing. Complainant

opposed this motion.

In an Order dated June 15, 2007, the AJ ruled on the motion finding that,

although complainant had established that she belonged to a statutorily

protected group and established that she had been subject to unwelcome

harassment based on her sex, with regard to her sexual harassment

claim she failed to demonstrate that the harassment was sufficiently

severe or pervasive so as to create a hostile work environment. The AJ

found that, notwithstanding complainant's claim to the contrary, the

evidence of sexual harassment included only the remarks, in effect,

that complainant would not have sex with others in return for their

helping her, and the commentary about the "Girls Gone Wild" video.

The AJ determined that these incidents were not severe or pervasive

enough to create a hostile or abusive work environment. The AJ further

found that the agency took steps to investigate complainant's claims as

soon as it was brought to management's attention. Finally, the AJ found

that the behavior was not sufficiently egregious to warrant placing the

coworker in a different building or on a different shift from complainant.

The AJ also found that complainant did not show that her employer knew

or should have known of the harassment before complainant reported it.

Therefore, the AJ held, complainant failed to establish a prima facie

case of sexual harassment and judgment was entered in favor of the agency

regarding complainant's sexual harassment claim.

Likewise, the AJ found that complainant had alleged no facts to

demonstrate that she was subjected to discrimination or harassment based

on her age. Therefore, judgment was entered in favor of the agency on

complainant's age discrimination claim. With respect to the remaining

issues, the AJ determined that issues of material fact existed as to

whether complainant was subjected to discrimination and/or a hostile

work environment based on her race, national origin, or sex, and so

those issues proceeded to a hearing.

A hearing was held on July 19, 2007, and a decision was issued on

August 27, 2007. During the hearing, the AJ took testimony regarding

complainant's claim that she was discriminated against based on her race,

national origin, and sex and was subjected to a hostile work environment.

Specifically, complainant alleged that she was denied overtime, that she

was yelled at with regard to clocking in early, that she found "Playboy"

and similar magazines in an envelope in the expediter's desk, and that she

was talked about in a sexual manner by coworkers. Complainant indicated

that she was afraid to come to work each day because she never knew

what was going to happen. The AJ found that complainant failed to

establish a prima facie case of discrimination because she failed to

demonstrate that other employees were treated more favorably. She also

did not establish that she was subjected to a hostile work environment

because the incidents cited were not sufficiently severe or pervasive.

Moreover, the AJ found that the agency had articulated legitimate

nondiscriminatory reasons for its actions. The agency had explained that

complainant was denied overtime because there was another employee who

performed the same duties that complainant did, so that employee could

take over where complainant left off without incurring overtime. The

agency further explained that complainant's supervisor spoke forcefully

to her when he learned that she had clocked in early because she had

previously been warned against unauthorized overtime, and he incorrectly

believed that she had clocked in without authorization. The agency noted

that, while complainant contended that she had been called disrespectful

names,4 these incidents took place years before the current incident, and

complainant's brother-in-law, who also worked at the facility, testified

that he never told complainant about the comments that he had overheard

which he believed were directed against her. Regarding the "Playboy"

type magazines, the AJ determined that the magazines that complainant

found could have been left by anyone at the facility, that there was

no evidence that the agency was aware of or condoned the presence of

this material in the workplace, and that the materials were removed as

soon as they were reported. Therefore, the AJ found that complainant

failed to prove her case. The agency subsequently issued a final order

adopting the AJ's finding that complainant failed to prove that she was

subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant contends that she was the only female out on

the dock and, as the only female she was subjected to ongoing sexual

harassment and a sexually hostile environment. Complainant asks that

the Commission read the hearing transcript as there were many sexual

comments that were made either to or about complainant. The agency asks

that complainant's appeal be denied as she has not provided any evidence

which indicates that the agency's reasons were pretext for discrimination

or harassment/hostile work environment.

ANALYSIS AND FINDINGS

First, we consider whether the AJ properly issued a decision without

a hearing in part, with regard to complainant's allegations of sexual

harassment and age discrimination. The Commission's regulations allow

an AJ to issue a decision without a hearing when s/he finds that there

are no genuine issues of material fact. 29 C.F.R. � 1614.109(g). This

regulation is patterned after the summary judgment procedure in Rule 56

of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held

that summary judgment is appropriate where a court determines that, given

the substantive legal and evidentiary standards that apply to the case,

there exists no genuine issue of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). The AJ may properly issue a

decision without a hearing only upon a determination that the record

has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).

We find that the AJ's determination to issue a decision without a hearing

(summary judgment) regarding the issues of age discrimination and sexual

harassment were appropriate.

The Commission agrees that complainant failed to establish that she was

subjected to sexual harassment. We find the record supports the AJ's

finding that the incident complained of when evaluated from the objective

viewpoint of a reasonable person in the victim's circumstances was not

severe or pervasive enough to establish sexual harassment. At most,

complainant is complaining of an isolated incident, i.e., that her

coworker said another coworker should stop helping her because he was not

"going to get any" and when on the same day, she overheard a conversation

about a video, which was stopped immediately when she complained about

the situation. The Commission has long held that a single incident

or group of isolated incidents will not be regarded as discriminatory

harassment unless the conduct is severe. Walker v. Ford Motor Co., 684

F.2d 1355, 1358 (11th Cir. 1982). Further, with respect to the incidents

alleged in this case, we find that complainant has not shown that the

harassment affected a term or condition of employment and/or had the

purpose or effect of unreasonably interfering with the work environment

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

Furthermore, we find that the agency took immediate action in response to

complainant's allegation. As such, we agree that there is no basis for

imputing liability to the agency. Further, the Commission finds that no

evidence has been presented which supports complainant's contention that

age was considered with regard to any of the actions in the instant case.

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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

To prevail in a disparate treatment claim 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). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

Complainant alleges that she was subjected to a hostile work environment

and harassment. To establish a prima facie case of hostile environment

harassment, a complainant must show that: (1) he or she is a member of a

statutorily protected class; (2) he or she was subjected to harassment in

the form of unwelcome verbal or physical conduct involving the protected

class; (3) the harassment complained of was based on the statutorily

protected class; and (4) the harassment affected a term or condition of

employment and/or had the purpose or effect of unreasonably interfering

with the work environment and/or creating an intimidating, hostile, or

offensive work environment. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.

In order to establish a prima facie case of sexual harassment, a

complainant must prove, by a preponderance of the evidence, the existence

of five elements: (1) that she is a member of a statutorily protected

class; (2) that she was subjected to unwelcome conduct related to her sex;

(3) that the harassment complained of was based on her sex; (4) that

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) that there is a basis for imputing

liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,

903 (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).

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we agree that

complainant has not demonstrated that she was discriminated against or

subjected to harassment or a hostile work environment. Specifically,

the Commissions finds that even if we assume, arguendo, that complainant

established a prima facie case of discrimination with regard to race,

sex, or national origin, we find the agency articulated legitimate

nondiscriminatory reasons for its actions as was discussed above.

Further, we find that complainant has not demonstrated that these

articulated reasons were pretext for discrimination.

With respect to complainant's claim of harassment or a hostile work

environment, we further find that the incidents complained of were not

sufficiently severe or pervasive to establish a hostile work environment.

We note the agency articulated legitimate reasons for speaking to

complainant regarding clocking-in early and explained why she was denied

overtime; and explained that the "Playboy" type magazines could have

belonged to anyone, there was no evidence that the agency was aware

of or condoned the presence of this material in the workplace, and the

materials were removed as soon as they were reported. Further, while the

offensive names that complainant maintains she was called in the past

have no place in the work environment, the incidents complained of are

too remote in time to establish a hostile work environment in this case.

CONCLUSION

Accordingly, the agency's final order affirming the AJ's finding of no

discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

December 10, 2009

Date

1 This incident occurred on or about August 16, 2006. Complainant asked

one of the coworkers involved to not speak like that in front of her.

That coworker apologized and the incident was not repeated.

2 The coworker filed a grievance and the suspension was reduced to five

days.

3 At the hearing, complainant indicated that the coworker had made

inappropriate comments about her in the past but that these incidents

had occurred several years before the current incidents.

4 Complainant testified that anywhere from three to six years prior to

the instant case, her supervisor called her a "chink," "whore," "gook,"

and "cunt." She indicated that she did not know what these words meant

until she asked her husband.

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0120080151

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120080151