0120101065
06-24-2010
Teresa Y. Werkheiser, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Teresa Y. Werkheiser,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120101065
Hearing No. 490-2009-00090X
Agency No. 4H-370-0082-08
DECISION
INTRODUCTION
Complainant filed an appeal from the Agency's December 2, 2009 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.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency's final decision.
BACKGROUND
During the relevant period, Complainant worked as a Sales, Service &
Distribution Associate at a Lafayette, Georgia facility of the Agency.
She filed a formal EEO complaint alleging that, between August 2007
and May 2008, the Agency subjected her to hostile work environment
harassment on the basis of sex (female) when a male coworker was treated
more favorable than her in terms and conditions of employment, e.g.,
assignments, use of cell phone, length of breaks, availability of
training, shift hours required, and manner in which communicated with
by management. Further, Complainant alleged that a facility postmaster
(P1) told her that, due to her daughter's sexual orientation, she will
always have a stigma attached to her.1
The Agency conducted an investigation of Complainant's claim. During the
Agency investigation, P1 stated that she expected all employees to give
100% to their work and did not treat Complainant differently. P1 added
that she spoke to Complainant sternly only when necessary based on her
conduct or failure to follow policies. Further, P1 stated that she and
Complainant discussed sexual orientation during a private conversation and
Complainant is attempting to twist the conversation for her EEO complaint.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Initially,
Complainant requested a hearing but later withdrew her request, and the
AJ remanded the matter to the Agency for an immediate final decision.
In its December 2 final decision, the Agency found no discrimination.
Specifically, the Agency found that Complainant failed to establish a
prima facie case of discrimination. The Agency stated that Complainant
did not show that the actions alleged rose to the level of a hostile work
environment or were based on discriminatory motives. The Agency concluded
that management was directing Complainant in the performance of her
duties, as would be expected. Finally, the Agency held that Complainant
failed to show pretext. The instant appeal from Complainant followed.
On appeal, Complainant reiterated her prior contentions and stated that
she put forth sufficient evidence to show sex-based discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency 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, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford
Motor Co., 684 F.2d 1355 (11th Cir. 1982). Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be
determined by looking at all the circumstances, including the frequency
of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether
it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
To establish a prima facie case of hostile environment harassment,
complainants must show that: (1) they are a member of a statutorily
protected class; (2) they were subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (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. Humphrey v. U. S. Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. �1604.11. 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).
In the instant case, we find that, assuming the actions
Complainant alleged rose to the level of a hostile work
environment, Complainant failed to show that said actions were
based on discriminatory motives. Additionally, to the extent
that Complainant alleged disparate treatment, we find that
she failed to show pretext by a preponderance of the evidence.
Accordingly, we AFFIRM the Agency's finding of no discrimination.
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
June 24, 2010
__________________
Date
1 In Werkheiser v. U.S. Postal Service, EEOC Appeal No. 0120083367
(November 12, 2008), the Commission informed Complainant that the
basis of sexual orientation is not within our purview and found "sex"
the basis alleged by Complainant.
??
??
??
??
2
0120101065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101065