0120111503
06-21-2012
Beatriz E. Luque-Napoleon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Beatriz E. Luque-Napoleon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120111503
Agency No. 1F921002110
DECISION
On January 21, 2011, Complainant filed an appeal from the Agency's December 16, 2010, final decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Midway Processing and Distribution Center facility in San Diego, California.
On April 28, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic), sex (female), and age (54 years at time of incident) when:
on January 7, 2010 and for approximately1 seven months prior to that date, Complainant was sexually harassed by a coworker (CW: male, African American, 40 years at time of incident) and, after Complainant reported the January 2010 incident, management failed to act appropriately.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency's decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. While the FAD is somewhat unclear, the Agency appeared to find that Complainant failed to establish that she was harassed based on her race or age, but successfully established she was harassed based on her sex. The Agency further found, however, that it could not be held liable for any harassment because management took prompt and effective action once it learned of the alleged harassment.
The instant appeal followed. On appeal, Complainant maintains that management failed to conduct an appropriate investigation and that her complaint was not taken seriously. Complainant also mentioned that a female coworker also experienced harassment in October 2009, but that "nothing was done to investigate."
The Agency responds that the record shows that management did provide a full and complete investigation and that after CW was transferred to another department, the harassment ceased.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
Complainant alleged that "approximately seven months ago" CW began behaving inappropriately towards her "both verbally and physically." Counselor's Report, p. 30. Complainant said that "I let him know that I didn't appreciate his actions. He would on and off continue." Complainant further stated that on one occasion (no date provided) she and CW were in an elevator and "he pinned me in the corner of the elevator and I pushed him away and told him don't ever do that again." Id. The behavior from CW stopped for a while, but then on an unspecified occasion "he came up from behind and placed his arm around my neck kissed [ sic] me on the cheek." Id., p. 25. Complainant further stated that "recently (before Christmas) [CW] started trying to be overly friendly with me, trying to hug on [sic] me, he would sneak up on me and whisper 'I love you.' . . . Every day for the last two weeks I have had to deal with him either touching trying [sic] to hug me or his verbal remarks." Id., pp. 31-2, (parentheses in original). Complainant said that on December 31, 2009, CW came up to Complainant and told her that he wanted to meet her in the parking lot after work to talk to her "about us" and that "at that point I got very angry and told him very clearly 'there is no us! We are co-workers, nothing more! Leave me alone!" Id., p. 25. A few days later, on January 6, 2010, CW came up close behind Complainant, put his face close to hers and touched her on her back. On January 7, 2010, Complainant, CW and another coworker were on an elevator and CW said to Complainant in a very low voice "I love you" in Spanish. Id., p. 16. It was after this incident that Complainant complained to management.
To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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; 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994).
Following a review of the record we find that Complainant has shown she was subjected to unwelcome verbal or physical conduct involving her sex, but not her age or race, and further, that the conduct was based on her sex, but not her age or race. We further find that such actions as the unwelcome kissing and physical touching of Complainant, the pinning in the elevator, and the verbal comments were actions sufficiently severe to have created a hostile work environment based on her sex.
In a case such as this involving harassment by a coworker, 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 Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 at 12 (June 18, 1999).
The Agency argues that there is no basis for imputing liability to the Agency because once management was made aware of CW's conduct in January 2010, "management immediately took the necessary steps to correct this behavior." FAD, p. 29. The Agency has shown that that sexual harassment posters are posted at the facility and that employees and management received hostile work environment training. The Agency Manager (M: Pacific Islander, female, 54 and 55 years at time of incidents) averred that Complainant and CW had worked on the same machine and "they could pass within arm's reach." Report of Investigation (ROI) Affidavit B, p. 3. M further averred that after Complainant told her of the harassment, she immediately interviewed CW and he admitted hugging, kissing, and telling Complainant "I love you" in Spanish, but claimed that Complainant had never asked him to stop or to leave her alone and never appeared angry or upset with his behavior. Id., p. 4. M averred that on that same day "we moved [CW] to second [sic] floor to automation and that's where he stayed for several months," while Complainant "was assigned to first [sic] floor." Id., p. 5.
CW also admitted in an affidavit that he said "I love you" to Complainant, but that he did not intend to sexually harass her and that she did not indicate that it was unwelcome. Affidavit E, p. 3. He further averred that he has had no further interaction with Complainant since January 7, 2010, and that he was "instructed not to hug or talk rude to anyone. I was moved to a different work location while this investigation is in progress. I have bidded [sic] out of my craft location, away from" Complainant. Id. The Agency further noted that Complainant does not allege that CW engaged in any more inappropriate actions after Management spoke to him and moved him.
Following a review of the record, we agree that Complainant has not met her burden of establishing that there is a basis for imputing liability to the Agency. See Henson, 682 F.2d 897. It is undisputed that although Complainant now alleges that the harassment had gone on for seven months, she did not report it to anyone in management until January 2010. Management immediately moved CW to a different work location away from Complainant and initiated an investigation. While Complainant is dissatisfied with the investigation, the record shows that the Agency acted promptly and appropriately in addressing the situation and that such actions appear to have prevented additional acts of harassment.
Complainant says on appeal that on February 17, 2010, an incident occurred "where I felt [CW] was trying to intimidate me by coming to [the side of the facility] where I was working [but that] I did not report [sic] as there were no witnesses." We note that M earlier averred that CW "has been instructed not to contact her, but they could potentially cross each other's paths." See ROI, Affidavit B, p. 3. Complainant's appeal statement does not provide sufficient detail to determine whether the February 2010 incident was intentional harassment or whether CW had to come to her side of the facility for legitimate work-reasons.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
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
June 21, 2012
__________________
Date
1 Complainant did not specify exactly when the harassment began.
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0120111503
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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