0120093801
06-21-2012
Terry M. Dorsey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Terry M. Dorsey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 01-2009-3801
Agency No. 1K211008308
DECISION
On September 15, 2009, Complainant filed an appeal from the Agency's August 18, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Maintenance Operations at the Agency's Baltimore Processing and Distribution Center in Baltimore, Maryland.
On January 13, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on August 8, 2008, she learned that the Manager of Maintenance Operations ("M1") told co-workers she had sex with him several times.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency's decision concluded there was insufficient evidence to conclusively find that M1 was spreading rumors about Complainant. Although Complainant averred that a co-worker ("CW1") informed Complainant that he had heard of a prior sexual relationship between Complainant and the Manager, CW1 later averred that Complainant misunderstood, and he only heard that that they had "hung out" in the past. The Agency found that Complainant may have contributed to the rumors while she searched for witnesses who also heard the Manager spreading rumors. Accordingly, the Agency found Complainant failed to establish a prima facie case of sexual harassment, because she failed to prove the events occurred, as alleged.
With respect to her claim of reprisal, the Agency noted that Complainant testified against the Manager in a coworker's ("CW2") complaint filed in November 2007. The Agency found Complainant failed to establish a prima facie case because the filing of the complaint and the subsequent rumors were too far removed to establish a nexus of retaliation.
The Agency found that even if the rumors occurred, as Complainant alleged, management took appropriate remedial action by investigating the complaint. The Maintenance Manager averred that he initiated an investigation, which revealed inconclusive results because no witnesses corroborated Complainant's claim that the Manager was spreading rumors. He averred that he informed all relevant parties that the rumors were disruptive and must stop. The Agency found no evidence of sexual harassment or retaliation, and the decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the rumors began to spread in March 2008, shortly after she testified against the Manager in CW2's complaint. She states that co-workers have told her that the Manager reported that Complainant and the Manager used to "hang out back in the day." Despite the Agency's finding to the contrary, she claims there is evidence that the Manager spread rumors that a sexual relationship existed between the two of them. Specifically, Complainant states a co-worker corroborated her allegation that in August 2008, CW1 informed Complainant that the Manager told him they had a prior sexual relationship. Complainant denies all the rumors, and states that it has negatively affected her marriage, as her husband also works at the same facility. She further states that a 2006 Human Resources investigation revealed that the Manager was retaliatory, and it was recommended that he be removed from the facility.
Complainant states that after she complained about the rumors, she was instructed by the Agency's Crisis Intervention Counselor to find others who could corroborate her complaint. Accordingly, she questioned co-workers as to whether they had heard of the rumors. She states she should not be blamed for spreading the rumors when the Agency asked her to seek out information. Complainant states the Manager should be removed from the facility.
The Agency asks that we affirm the FAD.
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's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
In order to establish a prima facie case of sexual harassment, the Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex; (3) that the harassment complained of was based on her sex; (4) that 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) that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903 (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).
After a review of the record, we find the preponderance of the evidence in the record does not support Complainant's claim that she was subjected to either sexual harassment or retaliatory harassment. Complainant brought allegations that co-workers and members of management (not her own supervisor) were spreading rumors about her as early as March 2008. The Agency conducted an investigation, and found the results were "inconclusive;" meaning that they could not establish that the Manager was responsible for spreading the rumors. However, we find the record supports the notion that rumors about a relationship between Complainant and other employees existed at the facility.1
However, assuming this rose to the level of a hostile work environment, we do not find Complainant established a basis for imputing liability on the Agency. Complainant did not prove that her Supervisor, or another supervisor with authority to recommend a tangible employment action, was responsible for the spread of rumors. Accordingly, in order to establish liability based on the harassment of co-workers, Complainant would need to present evidence that the Agency knew about the rumors, but failed to take any action.
Here, the Manager of Maintenance ("M2") averred that once he learned of the allegations, an investigation was conducted, and he held several meetings with the named parties. He averred that he spoke to them about the sexual harassment policy, and that neither Complainant nor M1 objected to working in the same department with the other. The evidence in the record supports this testimony, as the record reveals an investigation was in fact conducted, as well as a review of the sexual harassment policy.2 Accordingly, we cannot find that the Agency failed to take action in response to the complaint.
As for Complainant's claim of reprisal, we find Complainant failed to establish that a causal nexus between the rumors and her prior EEO activity. Rather, the record reveals a difficult work environment existed between Complainant and M1 existed prior to her involvement in any EEO activity. Accordingly, we find insufficient evidence which would establish of a causal connection between her EEO activity and the spread of rumors.
Nevertheless, we find no basis for imputing liability to the Agency in this matter for the reasons explained above. Accordingly, based on the record before us, we find Complainant failed to prove, more likely than not, that she was subjected to unwelcome sexual or retaliatory harassment, and that there was a basis for imputing liability on the employer.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
06/21/2012
__________________
Date
1 Complainant asserts vehemently that the rumors about her are untrue, and complains that M1 conducted a smear campaign against her. Complainant suffered emotionally as a result. To be sure, there are serious issues of credibility in this case, which could have been more thoroughly examined at a hearing. The record contains conflicting testimony regarding the veracity of the rumors, as well opposing testimony about M1's credibility. However, we are unable to assess the demeanor of these witnesses as Complainant chose to request a final decision from the Agency.
2 We do note for the Agency's information that the investigator, not Complainant, should be responsible for interviewing witnesses about harassment. For more information on an effective investigation, the Agency should consult Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
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01-2009-3801
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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01-2009-3801