01972447
05-01-2000
Ruby J. Hankins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Ruby J. Hankins v. United States Postal Service
01972447
May 1, 2000
Ruby J. Hankins, )
Complainant, )
) Appeal No. 01972447
v. ) Agency No. 1G-754-1018-95
) Hearing No. 310-96-5387X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (African-American), sex
(female), and reprisal (prior EEO activity), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue on appeal is whether complainant established by a preponderance
of the evidence that on or around September 19, 1994, her supervisor
harassed her by continually making sexual remarks to her, not respecting
her, and not treating her in a professional manner.
BACKGROUND
The record reveals that on October 27, 1994, complainant, a PS-5
Maintenance Control Clerk at the agency's North Texas Processing and
Distribution Center, filed a request to re-open her sexual harassment
complaint of December 19, 1989, alleging that her supervisor breached
the terms of its Settlement Agreement (AGREEMENT) with complainant dated
December 27, 1989. Complainant was interviewed by an EEO Counselor on
December 2, 1994, and filed a formal EEO complaint with the agency on
December 5, 1994, alleging that the agency had breached the AGREEMENT, as
referenced above. On March 16, 1995, the agency accepted complainant's
formal complaint, and set forth the issue as whether her "[s]upervisor
... breached a settlement agreement dated December 19, 1989, by continuing
to make sexual remarks, not respecting [her], and not treating [her]
in a professional manner." The agency completed its investigation in
June of 1995, and at the conclusion of the investigation, complainant
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ).
Prior to the hearing, on February 9, 1996, the agency issued a Final
Agency Decision (FAD1), complete with appeal rights. In FAD1, the agency
stated that notwithstanding its original letter of acceptance dated March
16, 1995, it had reviewed complainant's counselor's report and determined
that the matter alleged was not a breach of settlement agreement, but an
allegation of hostile environment sexual harassment. The agency therefore
informed complainant that it was remanding her case to the agency for
investigation, with a revised issue set forth as whether "[complainant]
was sexually harassed by [her] supervisor... and not treated in a
professional manner." There is no record of complainant appealing FAD1,
and ultimately, a hearing was conducted on September 20, 1996. The AJ
issued a Recommended Decision (RD) finding no discrimination.
The AJ concluded that complainant established a prima facie case of race
and sex discrimination, but failed to establish a prima facie case of
reprisal, noting that the she failed to establish the requisite nexus
between her 1989 EEO activity, and her supervisor's conduct in 1994.
The AJ then concluded that complainant failed to establish a prima facie
case of sexual harassment, noting that complainant was familiar with the
EEO complaint process and the agency's policy against sexual harassment,
that she failed to inform any management official of her supervisor's
comment at the time the events occurred, that she did not pursue her
claim until four months after the alleged events occurred, and that the
existence of a written grievance policy known to a complainant shields
the employer from Title VII liability.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for complainant's supervisor's conduct
alleged to have been discriminatory or harassing, namely, that while
her supervisor admitted referring to complainant as Dr. Jekyll and
Mr. (Mrs.) Hyde to another employee (co-worker), whom she was dating at
the time, that complainant was not angered, but was overheard laughing
when she heard about the remark. Complainant was also overheard stating
words to the effect of "[h]ow am I going to get a man?" However,
she did not complain until four or five months after the incident.
Complainant's supervisor also admitted he was wrong for yelling at her
after she insisted on remaining in his office after he instructed her he
did not want to discuss her grievance concerning that matter. The agency
also noted that her supervisor denied walking by her desk and winking
at her, or making statements while she was talking to the co-worker
at her desk. The AJ concluded that complainant failed to demonstrate
that her supervisor's actions were a pretext for discrimination.
The AJ also found that while the Dr. Jekyll statement was offensive,
it was not sufficiently severe or pervasive to constitute a hostile work
environment. In reaching this conclusion, the AJ noted that complainant
did not complain about the above-referenced remark until five months
after the incident, and that she never mentioned his winking at her or
making any remarks about her personal life while the co-worker was at
her desk. On this basis, the AJ determined that the Dr. Jekyll remark
did not severely alter her work environment. Moreover, while complainant
denied laughing about the remark or making the above-referenced statement,
she did admit stating words to the effect of "[w]hat if I were trying to
get a man?" Thus, the AJ found that her response "reflected an attitude
of levity." The agency's subsequent FAD adopted the findings of the AJ.
Complainant submits no new contentions on appeal, and the agency requests
that the Commission affirm its FAD.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 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).
After a careful review of the record, the Commission finds that it agrees
with the AJ's findings of fact and ultimate finding of no discrimination,
but wishes to clarify a few matters. The Commission first notes that
although the agency initially processed complainant's complaint as
a breach of settlement agreement, though not in a manner consistent
with 29 C.F.R. � 1614.504, the agency ultimately reached the proper
conclusion that her allegations of subsequent acts of discrimination
should be processed as a separate complaint, and complainant never
objected to the way the agency processed her formal EEO complaint. See
29 C.F.R. � 1614.504(c).
Additionally, we note that in addition to complainant's sexual harassment
allegation, her allegations of race and retaliation based on the same
incident should not only have been analyzed under a disparate treatment
framework of analysis as set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F. 2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
but should also have been analyzed under a harassment theory.
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of her race, color, gender, religion, sex,
national origin or retaliation. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6;
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Specific to complainant's allegations of sexual harassment,
the Commission notes that in order to establish a prima facie violation of
Title VII based on sexual harassment, complainant must show: (1) that she
belongs to a statutorily protected group; (2) that she was subjected to
sexual harassment in the form of unwelcome sexual advances, requests for
sexual favors, or other verbal or physical conduct of a sexual nature;
(3) that the harassment complained of was based on sex; and (4) that
submission to such conduct was made either explicitly or implicitly a
term or condition of complainant's employment or was used as a basis for
employment decisions affecting complainant, or the conduct unreasonably
interfered with her work performance or engendered an intimidating,
hostile or offensive working environment. 29 C.F.R. Section 1604.11(a);
Quintero v. United States Postal Service, EEOC Appeal No. 01960836
(April 21, 1998). Regarding the fourth element, it is well-settled
that, unless the conduct is very severe, a single incident or a group
of isolated incidents will not be regarded as creating a discriminatory
work environment. See Van Druff v. Department of Defense, EEOC Appeal
No. 01962398 (February 1, 1999); Walker v. Ford Motor Company, 684 F.2d
1355, 1358-9 (11th Cir. 1982); Johnson v. Bunny Bread Co., 646 F.2d 1250,
1257 (8th Cir. 1981).
Without addressing the propriety of the AJ's conclusion that the
existence of a written grievance policy known to complainant shields
the employer from Title VII liability in light of the Supreme Court's
decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and
Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998)<2>; we
find that complainant failed to establish a prima facie case of race,
retaliatory or sexual harassment because her supervisor's Dr. Jekyll
remark was not sexual, racial or retaliatory in nature. In any event,
even when considered together with allegations that her supervisor winked
at her or made comments to her and a co-worker when the co-worker was
at her desk, the few isolated instances of inappropriate conduct were
not sufficiently severe or pervasive so as to alter the conditions
of employment and create a hostile working environment. We therefore
discern no basis to disturb the AJ's findings of no discrimination which
were based on a detailed assessment of the record.
CONCLUSION
Therefore, after a careful review of the record, including arguments and
evidence not discussed in this decision, the Commission AFFIRMS the FAD.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
May 1, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2The Commission does wish to note that the existence of a written
policy does not necessarily shield an employer from liability based on a
supervisor's harassment of a subordinate employee. See EEOC Guidance on
Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC
Notice No. 915.009, (June 18, 1999) at 1("...the Court [in Ellerth]held
that an employer is always liable for a supervisor's harassment if it
culminates in a tangible employment action. However, if it does not, the
employer may be able to avoid liability or limit damages by establishing
an affirmative defense that includes two necessary elements...").