01A02232
08-02-2002
Charlene L. Thoburn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charlene L. Thoburn v. United States Postal Service
01A02232
08-02-02
.
Charlene L. Thoburn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02232
Agency No. 4J604000698
Hearing No. 210-99-6152X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a Letter Carrier at the agency's
Northeast Annex, Springfield, Illinois facility, filed a formal EEO
complaint on December 17, 1997, alleging that the agency had discriminated
against her on the bases of race (Caucasian) and sex (female) when
an agency supervisor subjected her to sexual comments, and, or advances:
(a) during the period July 1, 1997 to August 6, 1997; and (b) on or
about August 29, 1997.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The record reveals that on July 1, 1997, at the end of a shift,
complainant's supervisor (female) asked complainant whether she
knew how to treat a leg cramp. When complainant responded that you
had to rub it out, the supervisor asked complainant if she would do
it. Complainant refused. On or about that same day, complainant, her
partner, a co-worker and the supervisor (the group) went to a baseball
game after work. Following the game they became intoxicated and all four
drove to a hotel to stay the night. The supervisor arranged for leave
for everyone the next day. On or about July 5, 1997, the group went to
a bar together after work. On July 7-12, 1997, the group went golfing
together on two occasions after work. On July 13, 1997, the supervisor
visited the complainant and her partner at their home. On July 16, 1997,
complainant, her partner and the supervisor went to a bar together during
non-work hours. On July 21, 1997, the supervisor went to see complainant
while she was delivering mail on her assigned route. On July 24, 1997,
the supervisor walked complainant to her replacement vehicle. On July 25,
1997, the group went to two bars together during non-work hours. On July
26, 1997, the supervisor went to see complainant while she was delivering
mail on her assigned route and touched complainant's arm. On or about July
28, 1997, complainant and the supervisor talked about personal matters
while in the bathroom. Complainant then went to the supervisor's office
and suggested that they no longer have any contact whatsoever because
�it was really screwing [her] up.� The supervisor became upset and said
she did not want anything to change.
On August 1, 1997, the supervisor visited complainant at her work station
and asked her to visit her house the next day. On August 2, 1997,
complainant stopped by the supervisor's house and asked if she could
have a glass of water at which point they started kissing each other.
Complainant left the supervisor's house to finish delivering the mail on
her route but returned to the supervisor's house after her shift and had
sexual relations with the supervisor. On August 4, 1997, the group went
to dinner together during non-work hours. On August 6, 1997, the group
went for drinks at which time complainant's co-worker asked complainant
if she was having a relationship with the supervisor. During this
same evening, the supervisor asked complainant why she was avoiding her.
On August 12, 1997, complainant asked the supervisor if her leave could be
converted to sick leave and re-scheduled. The supervisor told complainant
that she would need medical documentation but then relented and permitted
complainant to switch her week. Complainant went on medical leave that
week and requested through the Employee Assistance Program a psychiatric
referral because she was severely depressed. On August 30, 1997, the
group went to a bar together during non-working hours. After finding out
about the complainant and the supervisor, the complainant's partner got
into a fist fight with the supervisor. The complainant and co-worker
joined the altercation. The co-worker punched complainant, breaking
her nose and knocking her to the ground. On or about September 3, 1997,
complainant met with the union secretary and her second line supervisor
to discuss her situation with the supervisor. The second-line supervisor
promised to take immediate steps to resolve the problem. Complainant did
not return to duty until April 28, 1998.
The AJ concluded that complainant failed to establish a prima facie
case of race discrimination because she did not identify any similarly
situated non-white employee who was treated more favorably under
comparable circumstances by the agency during the relevant time period
and, she did not offer any other probative evidence to suggest that she
was treated less favorably by the agency based on her race.
With regard to complainant's allegation of discrimination based on sex,
the AJ found that complainant's allegation was actually one based on
the agency's creation, and, or toleration of an alleged hostile work
environment since complainant conceded that she had not suffered any
tangible adverse actions. Further, the AJ determined that he would only
consider those events that occurred during work hours at the subject
facility. The AJ found that complainant had not cited any controlling
legal precedent or provided any probative evidence that would extend the
legal inquiry to interactions between her and the supervisor outside of
work. The AJ determined that only two of the incidents complained of by
complainant could be considered unwelcome to complainant: (1) when the
supervisor asked complainant to rub her leg to relieve her leg cramp,
which while not overtly sexual, was certainly suggestive and unwelcome;
and (2) on July 26, 1997, when the supervisor rubbed complainant's hand.
The AJ concluded that complainant failed to show by a preponderance of
the evidence that she was subjected to a hostile work environment during
the period July 1997 through August 1997. The AJ found that complainant
had not shown that the agency condoned or tolerated the harassing conduct
after complainant put the agency on notice of the offensive conduct.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred with respect to her
hostile work environment allegation, in that he limited the scope of
inquiry to those acts during work hours at the subject facility, or during
work hours while complainant was on her assigned delivery route, i.e.,
during work hours and at locations mandated by her agency employment.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We agree that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's race. We
also agree that complainant did not show that the alleged incidents were
sufficiently severe or pervasive to constitute a hostile work environment.
We do not find that complainant has sufficiently demonstrated that
the two incidents determined by the AJ to be unwelcome, unreasonably
interfered with her work performance and/or created an intimidating,
hostile, or offensive work environment. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 23 (1993).
With regard to complainant's allegation of sexual harassment, we note
that to establish a prima facie case of sexual harassment a complainant
must show that: (1) she belongs to a statutorily protected class; (2)
she was subjected to unwelcome conduct related to her gender, including
sexual advances, requests for favors, or other verbal or physical conduct
of a sexual nature; (3) the harassment complained of was based on sex;
(4) 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) there is a basis for imputing
liability to the employer. See McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982).
We find complainant has not submitted sufficient evidence to establish
sexual harassment. The record indicates that the majority of the
behavior complained of by complainant occurred during the time the
two were socializing outside of the work place. Contrary to the AJ's
finding, we find that the totality of the circumstances must be viewed
when analyzing a sexual harassment case. See Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986). Notwithstanding, we find
that even if we look at the totality of the circumstances in this case,
the complainant provided no evidence that the acts complained of were
pervasive and unwelcome. Complainant submitted no evidence that her
supervisor's comments unreasonably interfered with her work performance
or created a hostile work environment.
As such, we discern no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we affirm the agency's final
order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
____08-02-02______________
Date