01a10988
02-28-2001
Wanda Williams, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wanda Williams v. U.S. Postal Service
01A10988
February 28, 2001
.
Wanda Williams,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10988
Agency No. 4-A-100-0123-98
Hearing No. 160-99-8638X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning her 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the final agency order.
ISSUE PRESENTED
The issue presented herein is whether complainant has established, by
preponderant evidence, that she was discriminated against on the basis
of sex (female) when she was subjected to sexual harassment.
BACKGROUND
Complainant, employed by the agency as a Mail Handler, filed a formal
complaint on July 29, 1998, in which she alleged what has been identified
as the issue presented. The complaint was accepted for investigation.
At the conclusion of the investigation, complainant was provided a copy
of the investigative file and informed of her right to request either a
hearing before an EEOC Administrative Judge (AJ) or an immediate final
decision from the agency. Complainant requested the former. After a
review of the investigative file, the AJ opted to issue a decision without
a hearing. In that decision, the AJ found that complainant had not been
discriminated against as alleged. The agency's final order adopted the
AJ's findings. It is from that order that complainant appeals.
According to the information in the investigative file, complainant
alleged that, on March 21, 1998, she was sexually harassed when a
co-worker grabbed and squeezed her breasts from behind and stated, �Your
breasts feel so soft.� Complainant also alleged that ten to fifteen
minutes later, the co-worker attempted to grab her again, but this time
in a more playful manner because he knew that she was offended by his
earlier actions. According to complainant, after the second attempt,
the co-worker stated that complainant should not be offended because
his actions were a compliment, and meant that he liked her. Complainant
reported the incident to her supervisor on March 31, 1998. The incidents
that occurred on March 21 are the only alleged incidents of harassment.
Complainant's supervisor, after learning of the incident, immediately
informed an agency manager and conducted an investigation. During the
supervisor's investigation, the co-worker denied the allegations of sexual
harassment but offered an apology in case there was accidental contact
between the two. The supervisor instructed both parties to stay away
from each other. The agency manager held a meeting with the co-worker,
and detailed him to another facility.
ANALYSIS AND FINDINGS
Decision Without a Hearing
The United States Supreme Court has held that summary judgment is
appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court does not
sit as a fact finder. Id. The evidence of the non moving party must be
believed at the summary judgement state and all justifiable inferences
must be drawn in the non moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st Cir. 1988). A fact is �material� if it has the potential
to affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgement is not appropriate.
In the context of an administrative proceeding under Title VII, an
AJ may only properly consider summary judgement after there has been
adequate opportunity for development of the record. After examining
the testimonies of the various witnesses and other evidence provided by
the parties, we find that the AJ's decision to issue a ruling without
a hearing was appropriate.
Sexual Harassment
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. 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,
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).
In order to establish a claim of 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 group; (2) that she
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 she 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 her 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. Enforcement Guidance on
Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (March 8, 1994).
Essentially, the AJ ruled that complainant failed to state a valid case
of discrimination because the brief touching incident was an isolated
occurrence, and therefore was not pervasive enough to constitute
harassment. We disagree. An isolated occurrence can constitute
harassment if that occurrence is sufficiently severe. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). In this case, we find
that the alleged touching incident (i.e., grabbing and squeezing someone's
breasts, and then commenting on how soft they were) is sufficiently
severe to constitute harassment.
We also find, however, that complainant failed to establish a claim of
harassment of sexual harassment because there is no basis for imputing
liability to the employer. Where, as here, the alleged harassment is
perpetrated by a co-worker, liability is imputed to the employer if it
knew or should have known of the misconduct and failed to take immediate
and appropriate corrective action. Policy Guidance on Current Issues
of Sexual Harassment, EEOC Notice No. N-915-050 at 29-30 (March 19,
1990); Owens v. Department of Transportation, EEOC Request No. 05940824
(September 5, 1996). What is appropriate action will necessarily depend
on the facts of the particular case, the severity and persistence of
the harassment, and the effectiveness of any initial remedial step.
Owens, supra. The employer should make follow-up inquiries to make
certain that the harassment has not resumed and the victim has not
suffered retaliation. EEOC Notice No. N-915-050 at 30 (March 19, 1990).
In this case, the agency conducted an investigation and detailed the
alleged harassing co-worker to a different facility upon learning of
the allegation of harassment. There is no evidence in the file which
suggests that complainant continued to be harassed by the co-worker
after the agency's investigation and the co-worker's detail. For that
reason, we find that the agency's actions were immediate and appropriate.
Consequently, we also find that there is no basis for imputing liability
to the employer.<2>
CONCLUSION
Based on the foregoing, after a careful review of the record, including
complainant's arguments on appeal, the agency's response thereto, and
arguments and evidence not specifically discussed in this decision,
we hereby AFFIRM the final agency order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 28, 2001
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Our decision is predicated upon the agency's immediate and appropriate
actions, not on whether complainant's allegations are true. In the event
that the alleged harasser is placed back in his pre-detail position,
the agency is reminded of its duty to provide its employees with a
workplace free from sexual harassment.