0120091212
07-01-2009
Regina Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Regina Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091212
Agency No. 1J607001908
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 2, 2008 final decision 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.
At the time of the events at issue, complainant was employed as a
full-time regular General Expeditor at an agency facility in Chicago,
Illinois. On March 14, 2008, complainant sought EEO counseling and
later filed a formal EEO complaint on June 14, 2008, alleging that
the agency discriminated against her on the basis of sex (female),
in that ongoing since May 2006, she had been sexually harassed on the
Dock Area, and management knew of the harassment but had not taken
appropriate action. Specifically, complainant claimed that beginning
around May 2006, a co-worker spread lies of a sexual nature about her
to co-workers. Complainant also claimed that on April 28, 2008, a 204B
acting supervisor told co-workers that complainant had asked him if she
could perform sexual acts with him.
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. When complainant did
not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b).
In its final decision, the agency found no discrimination. The agency
determined that management witnesses had cumulatively recited legitimate,
nondiscriminatory reasons for its actions. Management stated that they
were not aware of the allegation that a coworker had been spreading
rumors about complainant. The evidence indicates the complainant first
reported the allegation by letter dated March 17, 2008, shortly after
she sought EEO counseling on the matter. The Fact Finding Summary
Investigation concluded that the supervisors had not witnessed the
alleged claims and were not otherwise informed of the allegations.
Moreover, the 204B supervisor involved in complainant's April 28, 2008
allegation maintained that he never harassed, or spread rumors regarding
complainant, and that his only contact with complainant was to give
her work- related instructions. He stated that he was not aware of
complainant's allegation until informed by his superior in March 2008.
Further, management witnesses asserted that once they became aware of
complainant's claims in March 2008, an administrative investigation was
conducted. The agency asserted that there was no evidence supporting
complainant's claim that she had been subjected to sexual harassment.
However, the 204B supervisor was reassigned so he no longer supervised
complainant.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior EEO
activity is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March
8, 1994). In determining that a working environment is hostile, factors
to consider are the frequency of the alleged discriminatory conduct, its
severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee's work performance. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance
at 6. The Supreme Court has stated that: "Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) she belongs to a statutorily protected class;
(2) 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 her statutorily protected class; (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;
and (5) there is a basis for imputing liability. 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 at 6.
An employer is subject to vicarious liability for harassment when it
is "created by a supervisor with immediate (or successively higher)
authority over the employee." Burlington Industries, Inc., v. Ellerth,
524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When, as in the
instant case, the harassment does not result in a tangible employment
action being taken against the employee, or when the alleged harasser
is not a supervisor, the employer may raise an affirmative defense
to liability. The agency can meet this defense, which is subject to
proof by a preponderance of the evidence, by demonstrating: (a) that it
exercised reasonable care to prevent and correct promptly any harassing
behavior; and (b) that appellant unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the agency
or to avoid harm otherwise. Burlington Industries, Inc., v. Ellerth,
118 S.Ct. at 2270; Faragher v. City of Boca Raton, 118 S.Ct. at 2293;
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
Here, complainant asserted that based on her statutorily protected class,
sex (female), both coworkers and a 204B supervisor subjected her to
a hostile work environment. However, we find that the weight of the
evidence does not establish that complainant was subjected to harassing
conduct as she alleged, or the harassment complained of was based on her
statutorily protected class. Further, complainant has not shown that the
purported harassment had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile,
or offensive work environment. The agency found that the overwhelming,
cumulative testimony from managers involved establishes that management
was not aware of complainant's allegations until she initiated the
EEO process. Moreover, the evidence indicates that once management
became aware of complainant's claims, an investigation was conducted.
The agency determined that there was no evidence that complainant had
been subjected to sexual harassment, and appropriate action was taken.
On appeal, complainant asserts, in essence, that management has
conspired to cover-up a hostile work environment. However, beyond her
bare assertions, complainant has not produced evidence to show that the
agency's explanations are pretexts for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
July 1, 2009
__________________
Date
5
0120091212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013