Zipporah N. White, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionJul 7, 2009
0120070923 (E.E.O.C. Jul. 7, 2009)

0120070923

07-07-2009

Zipporah N. White, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.


Zipporah N. White,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120070923

Agency No. 1H-304-0032-06

DECISION

On December 7, 2006, complainant filed an appeal from the agency's

November 24, 2006 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

At the time of the events giving rise to this complaint, complainant

worked as a Casual Clerk at the agency's Atlanta Bulk Mail Center Annex

in Atlanta, Georgia. The record reflects that at approximately 9:30

a.m. on June 16, 2006, complainant was playing cards at a table with

three employees in a break room. Complainant alleged that a co-worker

(male) that was also present in the room reached over and rubbed

the lower part of her right leg with his hand. Complainant voiced

her displeasure with the co-worker's action at that time. Later in

the day, the co-worker learned that complainant was upset because of

the incident, and he apologized to complainant for touching her leg.

Complainant subsequently informed two supervisors about the incident.

On June 17, 2006, a supervisor conducted a formal investigation into the

incident. Statements were obtained from complainant and the co-worker

confirming that the incident had occurred. The co-worker apologized,

stated that he was "just playing around," and noted that he did not

mean to make complainant feel uncomfortable. Complainant stated that

she objected to complainant's conduct and alleged, for the first time,

that the co-worker had also pinched her one to two months prior to the

June 16, 2006 incident.

The supervisor interviewed four additional witnesses/employees during

the investigation. One employee (male) had no recollection of the

incident but indicated that he had seen complainant and the co-worker

"playing and joking." Another employee (male) indicated that he only

observed a "playful tap, nothing sexual." A third employee (male) stated

that he was not present for the incident, but he had previously observed

"friendly behavior" between complainant and the co-worker. The fourth

employee (female) stated that she did not personally see the co-worker

touching complainant, but she was present in the room and "[i]t appeared

that they were joking around." The female employee also noted that she

had previously observed complainant and the co-worker speak or touch each

other in a "playful manner." The supervisor conducting the investigation

determined that the co-worker had touched complainant on the lower leg,

but he did not touch her in a "sexual nature." The supervisor also found

that complainant and the co-worker had exhibited a playful relationship

"on a regular basis." On July 20, 2006, the co-worker was issued a

Notice of 7-Day No Time Off Suspension for improper conduct.

Complainant initiated EEO Counseling and filed an EEO complaint, dated

August 28, 2006, alleging that she was discriminated against on the basis

of sex (female) when, on June 16, 2006, she was sexually harassed by a

co-worker.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and a 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 decision concluded that complainant

failed to prove that she was subjected to sexual harassment as alleged.

Specifically, the agency's decision found that complainant failed to

establish a prima facie case of sexual harassment, that complainant failed

to establish pretext, and that management took immediate and appropriate

corrective action as soon as complainant notified her supervisor of the

alleged sexual harassment.

CONTENTIONS ON APPEAL

Complainant did not submit a statement on appeal. In response to the

appeal, the agency urges the Commission to affirm its final decision.

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 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").

It is well-settled that sexual harassment in the workplace constitutes

an actionable form of sex discrimination under Title VII. Meritor

Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). 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).

In a case of co-worker harassment, an agency is responsible for acts

of harassment in the workplace where the agency (or its agents) knew

or should have known of the conduct, unless it can show that it took

immediate and appropriate corrective action. See EEOC Enforcement

Guidance: Vicarious Employer Liability for Unlawful Harassment by

Supervisors, No. 915.002 (June 18, 1999); 29 C.F.R. � 1604.11(d).

In the present case, the Commission finds that complainant failed to

establish her case of sexual harassment because there is no basis for

imputing liability to the agency. Although complainant is a member of

a statutorily protected group, and she alleged that she was subjected

to unwelcome conduct related to her sex, we find that the agency

responded to complainant's harassment allegation in an immediate and

appropriate manner. The record reflects that management officials

began an investigation soon after they became aware of the alleged

sexual harassment and took corrective action in the form of issuing

the co-worker a Notice of 7-Day No Time Off Suspension. Additionally,

we note that complainant reported no further incidents of harassment

after the agency took corrective action. Given that we find that the

agency took appropriate prompt remedial action, we find the agency not

liable for the alleged harassment.

CONCLUSION

Accordingly, after a careful review of the record, including arguments

and evidence not specifically addressed in the decision, the agency's

final order 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

_____07-07-09_____________

Date

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0120070923

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120070923