01985651
04-24-2000
Patricia A. Gardner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Patricia A. Gardner v. United States Postal Service
01985651
April 24, 2000
Patricia A. Gardner, )
Complainant, )
)
v. ) Appeal No. 01985651
) Agency No. 1K-2040-040-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On July 13, 1998, Patricia A. Gardner (hereinafter referred to as
complainant) filed a timely appeal from the June 10, 1998, final
decision of the United States Postal Service (hereinafter referred
to as the agency) concerning her 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. The appeal is timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the basis of sex (sexual harassment) when she was allegedly
sexually harassed in June-July 1996 and allegedly told she could be
dismissed from her casual position in August 1996 for poor attendance.
Complaint sought EEO counseling on August 22 and filed her formal
complaint on December 5, 1996. Following an investigation, she was
given the option of a hearing or an immediate final agency decision
(FAD), but she did not respond and the agency issued a FAD, finding
no discrimination. Complainant has filed an appeal without argument.
Complainant worked as a casual employee since June 1994. According to
complainant, her immediate supervisor (S1) made sexual comments and
overtures to her in June-July 1996 and, upon her refusal, assigned her to
a rolling machine. She also alleged that S1 told she would be dismissed
from her casual position in August 1996.<2> In support of her claim,
complainant stated that S1 had given her a ride home in December 1995
and made lewd comments in front of others. Also, she stated that she
sought to complain to the Manager (M1) about S1's actions but was unable
to do so. Complainant also claimed that another supervisor (S2) hugged
her from the side with one arm around her shoulder. Complainant stated
that she felt uncomfortable in these circumstances. Complainant did
not identify any witnesses or persons to corroborate her claims.
In response, S1 denied any sexual harassment and stated that he gave rides
home to many employees, both male and female, at their request, including
rides to complainant after December 1995. The record contains statements
from several employees who took rides from S1 and testified that nothing
untoward occurred. S1 denied any sexual harassment and further stated
that complainant was assigned to the rolling machine because she was the
last to arrive at work. He stated that in August 1996, he advised her
that she might be dismissed due to her poor attendance and tardiness as
well as her poor work performance and lack of attention to her duties.
S2 also denied any sexual harassment or touching toward complainant and
stated that his interactions with her concerned leave matters and her
poor attendance and tardiness. M1 acknowledged that complainant and a
union representative met briefly with him and that she complained about
her assignment to the rolling machine.<3>
Complainant has alleged that she was subjected to sexual harassment.
It is well-settled that sexual harassment in the workplace constitutes an
actionable form of sex discrimination under Title VII. Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of harassment, the complainant must show that: (1) she belongs to the
statutorily protected class; (2) she was subjected to unwelcome conduct
related to her membership in the class; (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 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). If the
complainant satisfies the five elements, then the agency is subject to
vicarious liability insofar as the harassment would have been "created
by a supervisor with immediate...authority over the [complainant]."
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002 (June 18, 1999), at 4 (citing,
Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257,
2270 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118
S.Ct. 2275, 2292-93 (1998)).<4>
With regard to complainant's claims, after review of the record before
us, we find that the weight of evidence clearly shows that the events and
incidents alleged by complainant did not occur, were not based on sex, or
were not sufficiently severe or pervasive to affect her work environment.
See McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).;
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Bloomer
v. Department of Transportation, EEOC Petition No. 03980137 (October
8, 1999). Complainant has offered no support for her claims, either
through further exposition or witness testimony, that the actions took
place or that, if any did occur, that they were unwelcome. Moreover, the
complainant's own statements are somewhat contradictory. For example,
that complainant continued to seek and obtain rides from S1 belies her
contention that she felt uncomfortable in his presence. We find that
complainant has not shown that the actions complained of constituted
discriminatory harassment. We find therefore that the agency did not
discriminate against her.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
04-24-00
Date Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ _________________________
Date
1On 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.
2Complainant continued to work until her casual appointment expired by
its own terms in December 1996. The complaint at issue herein does not
challenge the termination of her appointment.
3The record does not contain a statement from the union representative.
4When the harassment does not result in a tangible employment action,
the agency can raise an affirmative defense to liability which it can
meet by demonstrating: (a) that it exercised reasonable care to prevent
and correct promptly any harassing behavior; and (b) that the employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the agency or to avoid harm otherwise.
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors, at 12. This defense is not available when the harassment
results in a tangible employment action (e.g., a discharge, demotion,
or reassignment) being taken against the employee. Id. at 7.