Patricia A. Gardner, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01985651 (E.E.O.C. Apr. 24, 2000)

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.