01990758
05-11-2000
Timothy Fitzgerald, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Timothy Fitzgerald v. United States Postal Service
01990758
May 11, 2000
Timothy Fitzgerald, )
Complainant, )
) Appeal No. 01990758
v. ) Agency No. 4-J-604-1213-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Caucasian), sex (male) 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> Complainant alleges he was discriminated
against on the above-stated bases and sexually harassed by his Acting
Supervisor (AS; female) when: (1) on July 13, 1996, AS invited him
to a house party; and (2) on July 15, 1996, AS invited him out for a
beer. The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a PS-5 Part-Time Flexible Letter Carrier at the agency's
Berwyn, Illinois Post Office ("facility"). Believing he was a victim of
discrimination, complainant sought EEO counseling and, subsequently, filed
a complaint on November 26, 1996. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge.
However, complainant subsequently withdrew his request for a hearing
and requested a FAD, and in accordance with 29 C.F.R. � 1614.110, the
agency issued a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of race, sex or reprisal discrimination. In so finding, the FAD
noted the testimony of the facility Postmaster and Postmasters of two
other agency Post Offices stating that they had no knowledge of the
actions of AS as claimed by complainant. In addition, the FAD noted
that two other witnesses stated that they had no knowledge of sexual
harassment or sexual advances by AS toward complainant. The FAD found
that complainant did not present evidence to indicate that any agency
official harbored a discriminatory animus towards him based on race,
sex and/or retaliation.<2> On appeal, complainant makes no contentions,
while the agency requests that we affirm its FAD.
Complainant appears to assert that his claims, when taken together,
indicate a pattern of sexual harassment, in violation of Title VII.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently patterned 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)).
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, 1358 (11th Cir. 1982). Whether the harassment is
sufficiently severe to trigger a violation of Title VII must be determined
by looking at all of 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, 23 (1993); EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
In order to establish a prima facie case of such harassment, the
complainant must prove, by a preponderance of the evidence, the existence
of five elements: (1) that he is a member of a statutorily protected
group; (2) that he was subjected to unwelcome sexual advances, requests
for sexual favors, or other verbal or physical conduct of a sexual nature;
(3) that the harassment of which he complained is based on sex; and (4)
that the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with his work
environment and/or creating an intimidating, hostile, or offensive work
environment; and (5) that there is a basis for imputing liability to the
employer. Henson v. City of Dundee, 682 F.2d 987, 903-05 (11th Cir. 1982).
The harasser's conduct should be evaluated from the objective viewpoint
of a reasonable person in the victim's situation.
After consideration of the record, we find that concerning the incidents
of alleged inappropriate invitations by AS, complainant has failed to
prove, by a preponderance of the evidence, that these conversations
occurred as alleged and thus he cannot establish a prima facie case
of sexual harassment. We further find that even assuming, arguendo,
that complainant's allegations were credible, nevertheless the acts
of AS were not sufficiently severe or pervasive to demonstrate sexual
harassment due to an objectively hostile work environment. See Harris,
supra; see also Burlington Industries, Inc., v. Ellerth, 524 U.S. 742
(1998); Farragher v. City of Boca Raton, 524 U.S. 775 (1998). Even as
individual allegations, we find that complainant has failed to present
any credible or corroborated evidence which would lead to an inference
of discrimination based on race, sex or retaliation. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); 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). Therefore, after a careful review of the record and arguments
and evidence not specifically addressed in this decision, and for the
reasons discussed herein, we AFFIRM 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2 The FAD noted that the facility's Supervisor, Customer Services,
stated that she did not discriminate against or harass complainant by
asking him to document medical appointments on July 24, 1996, and that
she was not abusive in tone or manner to complainant. However, we need
not address these claims as they were not accepted for investigation by
the agency and complainant failed to contest the agency's determination.