01965994
10-07-1998
Antonia L. Brucelas, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Antonia L. Brucelas v. United States Postal Service
01965994
October 7, 1998
Antonia L. Brucelas, )
Appellant, )
)
v. ) Appeal No. 01965994
) Agency No. 4E890111895
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION
INTRODUCTION
On August 8, 1996, Antonia L. Brucelas (hereinafter referred to as the
appellant) timely filed an appeal with the Equal Employment Opportunity
Commission (EEOC) from the agency's final decision on her EEO complaint in
which she alleged unlawful discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal
is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether appellant has proven by a preponderance
of the evidence that she was subjected to sexual harassment during a
telephone call from the former Postmaster.
BACKGROUND
Appellant--a Window/Distribution Clerk at the agency's facility in Rancho
Santa Fe, California--filed an EEO complaint alleging sexual harassment
by the former Postmaster.<1> The agency accepted the complaint and
conducted an investigation. When appellant failed to request a hearing,
the agency issued a final decision (FAD) finding no discrimination under
a disparate treatment analysis. Appellant now appeals from the FAD.
Appellant asserts that on May 18, 1995, she received a telephone
call at 4:30 p.m. from an individual who identified himself as the
former Postmaster. Following the telephone call, appellant prepared a
"transcript" based on her recollection of the conversation. A review
of that document showed that the former Postmaster allegedly asked
appellant if she was still "sexy;" told her he used to get "turned on"
watching her work; said he had always loved her but that she was always
unapproachable; asked if she was still married and urged her to leave
her husband; asked what she was wearing; and, just before hanging up,
used slang to indicate that he had been engaging in self-gratification.
In the "transcript," appellant also indicated that the former Postmaster
allegedly had placed her on hold three times during the call.
Appellant reported the incident to the Customer Service Supervisor as
soon as she could reach her. The Customer Service Supervisor instructed
appellant that if she ever received such a telephone call again
from anyone, she was to immediately hang up the telephone and report
the incident to a supervisor or the Postmaster. The Customer Service
Supervisor also arranged for appellant to meet with the Rancho Santa Fe
Postmaster regarding the incident. After hearing appellant's version
of the facts, the Rancho Santa Fe Postmaster immediately contacted the
Postal Inspection Service and the San Diego District Manager of Post
Office Operations.
Record evidence showed that the Manager for Post Office Operations in
Reno, Nevada, interviewed the former Postmaster regarding the incident.
The former Postmaster denied making the phone call at that time and in
his later affidavit.<2> During the interview, the Manager informed the
Postmaster that "this type of activity was not appropriate and would
not be condoned."
There were no witnesses to the alleged incident. The agency's
investigation disclosed that the former Postmaster had worked 8 hours on
May 18, 1995. Telephone records for the Gardnerville facility showed
that no long distance calls were made to the Rancho Santa Fe facility
that day.
The Customer Service Supervisor said that she had worked closely with
the former Postmaster for two years and that the alleged telephone call
was "totally out of character...." She also said that she did not think
that appellant had "made this up." In her opinion, someone had called
and presented himself as the former Postmaster.
On appeal, appellant contends that the former Postmaster's conduct
constituted sexual harassment.<3>
In response, the agency contends that the incident, if true, did not
rise to the level of hostile environment sexual harassment and, even if
it did, prompt and appropriate corrective action was taken.
ANALYSIS AND FINDINGS
The issue on appeal is whether appellant has proven by a preponderance
of the evidence that she was subjected to sexual harassment by the
former Postmaster.
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 patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group
of isolated incidents will 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 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. Harris v. Forklift Systems, 510 U.S. 17
(1993).
The U.S. Supreme Court has held that a violation of Title VII may be
predicated on either of two types of sexual harassment: (a) harassment
that conditions concrete employment benefits on sexual favors ("quid pro
quo" sexual harassment); and (b) harassment that, while not directly
affecting economic benefits, creates a hostile or offensive working
environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 62-67 (1986).
In this case, appellant is alleging the latter type of harassment.
To establish a prima facie case of hostile environment sexual harassment,
a complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to sexual harassment in the form of unwelcome
sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature; (3) the harassment complained of was based on
sex; and, (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th
Cir. 1982); 29 C.F.R. �1604.11. Evidence of the general work atmosphere,
involving employees other than the complainant, also is relevant to the
issue of whether a hostile environment existed in violation of Title
VII. Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in
relevant part and rev'd in part, Meritor Savings Bank v. Vinson, 477
U.S. 57 (1986); Delgado v. Lehman, 665 F. Supp. 460, 468 (E.D. Va. 1987).
To avoid liability for hostile environment sexual harassment, an agency
must show that: 1) the acts/conduct complained of did not occur; 2)
the conduct complained of was not unwelcome; 3) the alleged harassment
was not sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment; 4)
immediate and appropriate corrective action was taken as soon as the
employer was put on notice; and/or 5) there is no basis for imputing
liability to the employer under agency principles.<4> See Vinson, supra.
Record evidence showed that appellant reported the telephone call
to the Customer Service Supervisor as soon as she was able to reach
her. The Customer Service Supervisor indicated that when she spoke to
appellant, appellant gave her details of the telephone conversation and
that appellant was "very upset." She further indicated that appellant
requested emergency annual leave the next day because she continued to
be upset by the incident. The Commission finds that it is more likely
than not that appellant received a telephone call in which the caller
made unwelcome sexual remarks and comments to her.
Although the incident consisted of a single telephone call of
short duration, it nonetheless involved very egregious conduct. The
Commission, however, need not reach the question of whether the conduct
was sufficiently severe and pervasive that it altered the conditions of
appellant's employment and created an abusive working environment for
the following reasons.
At the time of this incident, the former Postmaster had been working
at the Gardnerville facility for 3 years and had had no contact
with appellant during that time. Appellant and the former Postmaster
apparently worked together for a time in the Rancho Santa Fe facility.
Appellant did not allege, and the record failed to show, that the former
Postmaster ever engaged in any inappropriate behavior toward appellant
during that time. Record evidence showed that the former Postmaster
consistently and credibly denied that he made the telephone call.
Further, the Customer Service Supervisor testified that she had worked
closely with the former Postmaster for over two years at the Rancho
Santa Fe facility and that such behavior was "totally out of character
for him." Although appellant's version of the facts is credible, the
Commission finds that the evidence is insufficient to show that the it
was the former Postmaster who made the telephone call.<5>
The Commission further finds that the agency took immediate and
appropriate corrective action upon learning of the incident. The
Customer Service Supervisor gave appellant permission to immediately
hang up--regardless of who was calling--if she ever received such a
telephone call in the future. Upon learning of the incident, the Rancho
Santa Fe Postmaster promptly notified the Postal Inspection Service and
the San Diego District Manager who then notified the Las Vegas District
Manager. Thereafter, the Manager of Post Office Operations at Reno,
Nevada interviewed the former Postmaster about the incident and advised
him that such activity was not appropriate and would not be condoned.
The Commission affirms the agency's decision finding no discrimination,
albeit for different reasons.
CONCLUSION
Having reviewed the record in its entirety, the Commission finds that
the agency's final decision was correct and it hereby is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 7, 1998
DATE Frances M. Hart
Executive Officer
1At the time of the incident, this individual had been working as
the Postmaster at the agency's facility in Gardnerville, Nevada since
May 1, 1993. He previously worked at the Rancho Santa Fe facility for
3 years.
2The former Postmaster indicated that he had had a stroke in March 1995,
and had only recently returned to work. After a discussion with the
former Postmaster's physician, the agency's Occupational Health Nurse
noted in a memorandum that after a stroke or brain injury, a patient
sometimes will exhibit unusual or inexplicable behavior while the brain
is healing.
3Appellant requests that the instant case be consolidated with a
December 11, 1995 complaint of harassment filed against a co-worker.
The decision in EEOC Appeal No. 01964767 (July 10, 1997) considered
appellant's consolidation request; declined to grant it because the
allegations were separate and distinct; and, dismissed the December 11,
1995 complaint for failure to state a claim. Appellant did not request
reconsideration of the above decision.
4Under the facts of this case, the former Postmaster was not in a
supervisory relationship to the complainant. But see Farragher v. City
of Boca Raton, 1998 WL 336322 (U.S. June 26, 1998); Burlington Industries,
Inc. v. Ellerth, 1998 WL 336326 (U.S. June 26, 1998).
5The Occupational Nurse's general statement that individuals recovering
from a stroke sometimes exhibit unusual or inexplicable behavior is
insufficient evidence from which to conclude that the former Postmaster
was involved in the incident at issue.