0120113791
11-05-2012
Sylvia A. Hamon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Sylvia A. Hamon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120113791
Agency No. 4G-760-0211-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 29, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Customer Service Clerk at the Agency's Haltom City Branch in Fort Worth, Texas.
On December 22, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (unspecified), sex (female), color (unspecified), and in reprisal for prior EEO activity when:
on September 1, 2010, she was sexually harassed by a co-worker.
The record reflects that Complainant alleged that on September 1, 2010, she handed a co-worker paperwork, and he put his hand on her elbow and slid it down to her hand.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on June 29, 2011, pursuant to 29 C.F.R. � 1614.110(b).
The Agency dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
In the alternative, the Agency addressed the formal complaint on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of harassment based on sex and reprisal discrimination.1 Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
During the investigation, the Manager Customer Services, also Complainant's second level supervisor, stated that she became aware of the sexual harassment allegations after Complainant "left work, she called in a few days later and made some allegations but did not [state] sexual harassment. I told her she had to be more specific and it was after that she faxed a letter to Post office stating sexual harassment." The Manager stated that she then conducted a full investigation. The Manager stated that following the investigation, she sent her findings to the Customer Relation Coordinator. Specifically, the Manager stated that she interviewed Complainant, the alleged harasser, clerks and management but she did not find anything that validates Complainant's allegations.
The Manager stated that the alleged harasser "was made aware and instructed to have no further contact with [Complainant] if she came back to work." The record reflects that Complainant had not yet returned to work since several days following the date of the alleged discriminatory event. Furthermore, the Manager stated that she did not discriminate against Complainant based on her sex and prior protected activity.
The Postmaster stated that on October 4, 2010, Complainant contacted the Postmaster's office requesting to speak with him. The Postmaster stated at that time he was "Acting in the position of OIC Postmaster Fort Worth. I did return her phone call. She faxed several documents to my office along with a phone call." The Postmaster stated that when he received the information from Complainant, he contacted Human Resources to determine if an investigation was conducted on Complainant's allegations and learned that "there was in fact an investigation and the case was closed." Specifically, the Postmaster stated that according to Human Resources, an investigation was conducted and that Complainant's allegations "could not be supported, nor [corroborated.]"
This appeal followed.
ANALYSIS AND FINDINGS
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 severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally 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. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6.
In the instant case, we agree with the Agency that Complainant has not established, by a preponderance of the evidence, that she was subjected to sexual harassment by the co-worker. Our review of the record, moreover, supports the Agency's determination that the incident at issue were not sufficiently severe to trigger a Title VII violation, when considered either individually or jointly. Moreover, the record supports a finding that the Agency responded to Complainant's harassment allegation in an immediate and appropriate manner. The record reflects that as soon as the Manager became aware of Complainant's alleged sexual harassment by DO, she conducted an investigation and interviewed Complainant, the alleged harasser, clerks and Agency management; and made the alleged harasser aware of Complainant's allegations and instructed him not to have any further contact with Complainant. The Commission notes that the alleged harasser denied the alleged actions, asserting that he had known Complainant and her husband for years, and that Complainant simply wanted to "get some time off work."
Complainant did not make any new contentions on appeal. We determine that Complainant has offered no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
November 5, 2012
__________________
Date
1 The record reflects that in her affidavit, Complainant withdrew race and color as bases. Therefore, we will only address Complainant's allegation of discrimination on the bases of sex and retaliation.
2 Because we affirm the Agency's finding of no discrimination as addressed above, we find it unnecessary to address alternative disposition of the formal complaint (i.e. failure to state a claim).
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0120113791
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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