0120064271
01-15-2009
Yu C. Stough, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Yu C. Stough,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01200642711
Agency No. 4H320005905
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 9, 2006 final decision in the above-entitled
matter. Complainant alleged that the agency discriminated against her,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., on the bases of race (Asian), national origin
(Korean), sex (female), and reprisal for prior protected EEO when,
on March 15 and March 16, 2005, she was subjected to a hostile work
environment when a manager temporarily assigned to her office mocked her,
laughed at her accent, showed her a cartoon of a Chinese therapist and
a woman with a sex problem and asked her to read the cartoon out loud.
The agency concluded that the actions alleged did not rise to the level of
a hostile work environment. Complainant asserts that a postmaster (RMO),
who was temporarily assigned to complainant's facility, continuously
mocked her accent over a two-day period. According to complainant,
RMO would "bust out laughing" at every word she said and would mock her
by repeating and imitating her accent. Complainant also alleged that
RMO appeared to be following her around during this two-day period.
Complainant was frustrated, embarrassed and upset by RMO's conduct.
Specifically, complainant claimed that in the morning on March 15,
2005, she was assigned to work the "hot case," and after completing the
assignment she announced to the carriers that they needed to check their
hot case. According to complainant, RMO yelled loudly, "Hey, there's
hot cakes! Come get the hot cakes!" RMO's statements caused several
people to laugh. Complainant also stated that RMO then told her that
"the hot case stand has wheels and that [she] could push this around
and pass out the hot cakes." According to complainant, RMO continued
this behavior the entire day.
Later that day, complainant asserts that RMO asked her if she was Korean
and she said yes. Complainant further asserts that RMO handed her a
printed joke and asked her if he should change the character to a Korean
woman or should it be left as a Chinese woman. RMO also asked complainant
to read the joke out loud. After reading it to herself, she told RMO
that she couldn't read it out loud. The joke stated the following:
A woman was very distraught over the fact that she had not had a date or
any sex for over 5 years. She was afraid she might have something wrong
with her, so she decided to seek the medical expertise of the well-known
Chinese sex therapist Dr. Chang. Upon entering the examination room,
Dr. Chang said, "OK, take off all you crose." The woman did as she was
told. "Now get down and craw reery, reery fass to odder side of room."
The woman did as she was told. "Now get down and craw reery, reery fass
back to me." As she did, Dr. Chang shook his head slowly, "You problem
reery, reery bad. You haf Ed Zachary Disease. Worse case I ever see.
Dat why you not haf sex or dates." The woman asked anxiously, "Oh my
God, Dr. Chang, what is Ed Zachary Disease?" Dr. Chang sighed deeply
and replied, "Ed Zachary Disease is when your face rook Ed Zachary like
your ass."
Complainant found the joke and this incident extremely offensive.
The next day, RMO continued to tease complainant's about her accent in
a similar manner as the prior day. The record supports complainant's
general assertions.2
Unlawful harassment may be proven by showing that, because of her
membership in one or more protected classes, complainant was subject to
conduct so objectively offensive from a similarly situated reasonable
person's perspective that it altered the conditions of her employment.
See Laureano v. Department of Veterans Affairs, EEOC Appeal No. 0120061786
(November 8, 2007) (where complainant failed to show that incidents of
harassment, which included teasing complainant about her accent over
a three-month period, were sufficiently severe and/or pervasive to
establish a claim of harassment); Sambrano v. Department of the Navy,
EEOC Appeal No. 0120061649 (August 29, 2007); White v. Department
of Veterans Affairs, EEOC Appeal No. 0120070947 (November 5, 2008);
see also, Oncale v. Sundowner Offshore Servs., Inc., 523U.S. 75, 81
(1998); Harris v. Forklift Servs., Inc., 510 U.S. 17, 21-22 (1993);
Meritor Sav. Bank F.S.B. v. Vinson, 477 U.S. 57, 67 (1986). We find that
complainant has not shown that the incidents alleged were sufficiently
severe and/or pervasive to establish a claim of harassment.
The agency's decision is AFFIRMED.
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
January 15, 2009
Date
1 Due to a new data system, complainant's case has been re-designated
with the above-referenced appeal number.
2 However, we note that complainant did not present information to
determine the exact number of incidents that occurred during the two-day
period.
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0120064271
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120064271