01a54021
11-15-2005
Shonia L. Mack, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shonia L. Mack v. United States Postal Service
01A54021
November 15, 2005
.
Shonia L. Mack,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54021
Agency No. 1J-602-0025-03
Hearing No. 210-2005-00108X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Mail Processing
Clerk at the agency's Palatine Processing & Distribution Center
in Palatine, Illinois. On May 30, 2003, complainant filed a formal
complaint. Therein, complainant claimed that she was subjected to sexual
harassment on the basis of sex (female) when:
on December 5, 2002, [a named Supervisor Distribution Operations,
hereinafter identified as �SDO�] entered her area of assignment (Central
Dispatch), patted her on the buttocks and made a lewd comment.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge (AJ)
or alternatively, receive a final decision by the agency. Complainant
requested a hearing before an AJ. The AJ assigned to hear the complaint
cancelled complainant's request for a hearing and directed the agency
to issue a final decision because complainant failed to comply with the
AJ's February 22, 2005 order to submit a deposition by March 3, 2005.
In its FAD, dated April 13, 2005, the agency found no discrimination.
The agency determined that complainant did not establish a claim of
harassment based on her sex. The agency further found that complainant
had not established that she was subjected to discriminatory conduct
that was so severe or pervasive as to alter the terms or conditions of
her employment. The agency found that complainant did not submit any
medical documentation to support her claim; and that she did not offer
any evidence detailing how her reputation was ruined as a result of the
alleged discriminatory incident. Furthermore, the agency found that
the December 5, 2002 incident was not sufficiently severe enough to be
regarded as creating a hostile work environment.
Complainant claimed that on December 5, 2002, she was working in her
assigned area when the SDO entered the area and began to socialize with
one of her co-workers. The agency noted that complainant claimed that
SDO asked her to come to him; and asked her to turn around and then patted
her buttocks several times saying "Yeah, that's all of you." After she
realized what had just occurred, complainant walked away from SDO for a
moment but then returned and informed him not to � . . . ever put your
damn hands on me again." The agency noted that complainant claimed that
she left the area looking for her supervisor, but because her supervisor
was not in the work area, she sought assistance from a union official.
The agency noted that complainant claimed that the union official escorted
her to the office of the Manager Distribution Operations (MDO).
Further, the agency noted that according to MDO, complainant and her union
official came to her office on December 5, 2002, and informed her of the
incident involving the SDO, discussed above. The agency noted that MDO
stated that she took immediate and appropriate corrective action by first
asking complainant to write a statement and to obtain witness statements.
MDO stated that after complainant and her union steward left her office,
she paged SDO to her office but he had already went home for the day.
MDO stated that the following day, December 6, 2005, she discussed the
incident with the Lead Manager Distribution Operations (Lead Manager),
and that he obtained complainant's statement from her union steward.
MDO stated that after SDO returned to work on December 9, 2002, she and
the Lead Manager interviewed him. MDO stated that during the interview,
SDO acknowledged patting complainant's hip and made the statement "Yeah,
that's all you" to complainant. MDO contended, however, that SDO
asserted that complainant initiated the incident by bumping into him;
but that after he apologized to complainant, she nodded her head to
accept his apology. MDO stated that the Lead Manager thereafter issued
SDO a Letter of Warning in lieu of a Seven Day Suspension for conduct
unbecoming a postal employee.
On appeal, complainant, through her representative, contends that the AJ
improperly cancelled her request for a hearing and directed the agency to
issue a final decision because she failed to comply with his February 22,
2005 Order to submit a deposition by March 3, 2005. Complainant further
contends that one day prior to the scheduled deposition of March 3, 2005,
her representative informed her that he could no longer represent her.
Complainant states that she "did show up at deposition but felt uneasy
about being there without representation and left."
Regarding the AJ's dismissal of complainant's hearing request, the record
reflects that on March 3, 2005, complainant arrived at the office of the
agency attorney but refused to submit a deposition because her former
representative (a union official) was not present. In her response
to the "Agency's Request for Hearing Request Dismissal and/or Motion
to Compel," complainant claimed that it was not until March 2, 2005,
that she learned that her former representative was terminated from his
position on February 18, 2005. We, however, note that the record reflects
that on February 28, 2005, a new union president notified complainant's
former representative that he could no longer represent union members,
including complainant. The AJ found complainant's explanation did not
show good cause for failing to comply with his February 22, 2005 Order.
The AJ found that complainant improperly placed the blame on her former
representative's failure in notifying her that he could no longer
represent her. The AJ found that there was no explanation why some
other union official did not appear at the deposition; or why complainant
was unable to contact the agency to cancel the deposition that had been
scheduled for March 3, 2005. The Commission determines that the AJ
acted within his discretion by remanding complainant's complaint to
the agency for an immediate FAD when complainant did not comply with
his February 22, 2005 Order to submit a deposition by March 3, 2005.
In order to establish a prima facie case of hostile work environment
sexual harassment, a complainant must show that: (a) she belongs to the
statutorily protected class; (b) she was subjected to unwelcome conduct
related to her membership in that class; (c) the harassment complained
of was based on sex; (d) 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 (e) there is
a basis for imputing liability to the employer. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harassers' 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).
Regarding the merits of this case, the record reflects that complainant
informed agency officials on December 5, 2002, of the alleged incident
of sexual harassment, immediately after it occurred. The record
further reflects that the agency took immediate action against the
SDO by initiating an investigation of the matter, which culminated in
the issuance of a Letter of Warning to him. Moreover, the Commission
finds that the record supports a determination that complainant has
not established that the incident identified was sufficiently severe or
pervasive to affect her work environment. See Bloomer v. Department of
Transportation, EEOC Petition No. 03980137 (October 8, 1999).
Therefore, after a careful review of the record, we AFFIRM the agency's
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 15, 2005
__________________
Date