01a03825
08-12-2002
Tearesa P. Hyman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tearesa P. Hyman v. United States Postal Service
01A03825
08-12-02
.
Tearesa P. Hyman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03825
Agency No. 1H-374-0057-99
DECISION
On May 1, 2000, Tearesa P. Hyman (complainant) filed an appeal from the
final decision of the United States Postal Service, dated April 4, 2000.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405.
Complainant contacted an EEO counselor on July 16 and filed a formal
complaint on September 7, 1999. Following an investigation, complainant
was advised of her right to a hearing or an immediate final agency
decision (FAD), and she requested a FAD. In her formal complaint,
complainant claimed discrimination based on sex and age (DOB 12-13-58)
claiming that she was sexually harassed on June 19, 1999, and sexually
assaulted on July 10, 1999, by her supervisor (S1).<1> Complainant
notified an agency manager on July 16, 1999, at which time the agency
placed S1 on leave,<2> initiated an investigation by the Inspection
Service, and gave complainant (and her husband, also an employee)
administrative leave and other assistance, including referral to EAP.
At the time of these events, complainant was a 204(B) supervisor.
She claimed that S1 sought sexual favors in exchange for permanent
supervisory training and that he threatened to remove her from the 204(B)
program if she reported his sexual advances.
The Inspection Service's report was inconclusive. It interviewed 15
female employees besides complainant, and while none reported sexual
touching by S1, two or three described unwanted comments and possible
sexual innuendos. S1 told the Inspection Service that he and complainant
had an ongoing sexual relationship over a period of years and denied that
he assaulted complainant. In its final decision, the agency found that
it had acted to avoid liability; it also expressed doubt that complainant
was subjected to sexual harassment. On appeal, complainant argued that
S1 harassed her, stated that she experienced post-traumatic stress,
and submitted material from various sources about sexual harassment.
It is well-settled that sexual harassment in the workplace, if
sufficiently severe or pervasive, that results in an alteration of the
conditions of a complainant's employment, constitutes an actionable
form of sex discrimination under Title VII. Meritor Savings Bank FSB
v. Vinson, 477 U.S. 57 (1986); EEOC Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994), at
p. 3. In order to establish a claim 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 Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). If complainant satisfies these
elements, then the agency may be subject to vicarious liability for
the harassment. Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999) (Guidance).
Initially we consider whether the record and evidence presented by
complainant established a claim of sexual harassment. Based on the
record before us, we cannot find sufficient evidence that established
that the events occurred as alleged. While complainant asserted that
S1 sexually harassed her on June 19, 1999, and sexually assaulted her
on July 10, 1999, there is no corroborating evidence of either event.
We note that she did not report the first incident and that she waited
almost a week before reporting the second. We note, also, that the
Inspection Service's report does not conclusively establish that the
events as alleged took place, and that, at most, the report showed
that S1 made unwelcome and unwanted comments to some female employees,
although no one other than complainant reported a sexual touching or
physical contact. Moreover, in light of S1's denial to the Inspection
Service that he sexually harassed complainant and his claim that he had
engaged in a relationship with complainant over several years, we find
that the evidence in the record does not establish that the events as
alleged occurred and constituted sexual harassment.
In addressing a complaint of sexual harassment, the Commission considers
the record evidence before it and whether the record establishes the facts
as alleged. When confronted with conflicting evidence, the Commission
looks �at the record as a whole and at the totality of circumstances� and
evaluates each situation on a case-by-case basis. 29 C.F.R. � 1604.11(b);
see generally the Commission's Policy Guidance on Current Issues of
Sexual Harassment, as amended, No. N-915-050 (March 19, 1990). Here,
without an Administrative Judge to offer guidance on the credibility
of the parties, we cannot find that complainant carried her burden to
establish by a preponderance of the evidence that the events occurred
as alleged. For this reason, her claim fails. We find, therefore,
that the agency did not discriminate against complainant.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
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
___08-12-02_______________
Date
1According to complainant, on June 19, S1 made sexual comments and grabbed
her buttocks. On July 10, while discussing a leave matter in his office,
complainant claimed that S1 came around behind her and placed his hand
inside her blouse, groping at her breast; when she refused his request
for sex, he threw her onto his couch, held her down, unzipped his pants,
and exposed his penis.
2S1 did not return to work and resigned effective July 31, 1999. S1 was
interviewed by the Inspection Service but not in connection with the
EEO investigation of this complaint.