01a52919
08-24-2005
Gaetano A. Trovato, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gaetano A. Trovato v. United States Postal Service
01A52919
August 24, 2005
.
Gaetano A. Trovato,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52919
Agency No. 1H-321-0091-03
Hearing No. 150-2005-0002X
DECISION
Complainant filed an appeal with this Commission from a February 11,
2005 agency decision which implemented the January 26, 2005 decision of
an EEOC Administrative Judge (AJ) finding no discrimination.
Complainant, a mail processor, alleged in his complaint that the agency
discriminated against him on the basis of sex (male) when: (1) on July 24,
2003, and thereafter, complainant reported that he was sexually harassed
by a female co-worker (Person A) and no action was taken by the agency;
and (2) complainant was issued a letter of warning, dated September
23, 2003.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an AJ. The AJ issued
a decision without a hearing (summary judgment) finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination based on sex. The AJ found that complainant failed
to demonstrate that similarly situated employees not in complainant's
protected classes were treated differently under similar circumstances.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. See 29 C.F.R. � 1614.109(g). This regulation is patterned after
the summary judgment procedure set forth in Rule 56 of the Federal Rules
of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion, or in
reprisal is unlawful. To establish a prima facie case of harassment,
a complainant must show that: (1) s/he belongs to a statutorily
protected class; (2) s/he 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 the statutorily protected
class; 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 and (5) some basis exists to impute liability to the
employer, i.e., supervisory employees knew or should have known of the
conduct but failed to take corrective action.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
The record reveals that on February 11, 2003, Person A reported that
complainant had been staring at her and that she found complainant's
staring uncomfortable.<1> The record also reveals that on February 19,
2003, complainant was called into his supervisor's office to discuss
Person A's allegations. The record reveals that Person A reported
that on July 2, 2003, complainant stared at her while she was working.
The record reveals further that on July 3, 2003, complainant reported
that Person A was staring at him. The record discloses that on July 8,
2003, Person A was called into her supervisor's office and was told that
complainant was now alleging that she was harassing him. The record
also reveals that complainant alleged that Person A stuck her middle
finger at a male co-worker (Person B) every day and that he witnessed
the alleged actions of Person A.
The record contains the affidavit of complainant, the affidavit of
complainant's supervisor who was the supervisor of Distribution Operations
(DO) and the affidavit of the manager of DO.
Complainant stated in his affidavit that on February 20, 2003, Person A
sexually harassed him by displaying a drawing of a penis on her machine
where he could see it and which embarrassed him. Complainant also
stated that the drawing was removed after it was brought to management's
attention. The affidavit discloses that complainant alleged that Person
A stared at him five times on July 24, 2003, for 10 to 20 minutes each
time and that after the fourth time, he reported Person A's conduct
to a supervisor. The affidavit also reveals that on September 9, 2003,
complainant alleged that Person A stared at him for 10 minutes and he
reported the incident. Complainant also stated that when he reported
the incidents on February 20, July 24, and September 9, 2003, he was
moved to other working areas. Complainant's affidavit does not reflect
that the staring incidents in July and September were sexual in nature.
In his affidavit, complainant identified Person A as an individual who
was treated more favorably than he was with regard to discipline.
In his affidavit, complainant's supervisor stated that on July 3,
2003, complainant provided him with a written statement in which he
alleged that Person A had subjected him to non-sexual harassment.
The supervisor also stated that, a day prior, on July 2, 2003, Person
A provided him with a written statement alleging that complainant was
subjecting her to non-sexual harassment. He stated that an investigation
was conducted and both complainant and Person A were directed to work in
separate areas of the building and to conduct themselves appropriately.
The supervisor stated that on September 9, 2003, complainant provided him
with a statement alleging that Person A was continuing the non-sexual
harassment and that he indicated that he interviewed complainant and
Person A. The supervisor stated that he was not aware of the incident of
alleged sexual harassment on July 24, 2003, or any other claim of sexual
harassment, prior to his receiving the questionnaire for completion of
the affidavit. He also stated that he had issued a letter of warning
to Person A.
In his affidavit, the manager of Distribution Operations stated that on
July 24, 2003, complainant reported to him that Person A was staring at
him, that he asked the supervisor in the work area to investigate the
incident and that Person A was told to stay away from complainant.
The record reveals further that a letter of warning, dated September 22,
2003, was issued to Person A for failure to follow instructions when
she engaged in staring at complainant, although she was instructed to
discontinue the conduct. Person A was given a letter of warning on
September 23, 2003, for failure to follow an instruction when he stared
at complainant contrary to instruction.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. Considering the evidence in the a light most favorable to
complainant regarding his claim of sex-based harassment, the Commission
cannot find that the incidents that allegedly occurred, were so severe or
pervasive so as to have altered the conditions of complainant's employment
by creating a hostile work environment. Regarding claim 2, we find that
complainant has also failed to establish a prima facie case of sex-based
discrimination because complainant has failed to show that similarly
situated employees not in his protected class were treated more favorably.
The record shows that Person A, a female, received a letter of warning
for engaging in conduct similar to that in which complainant had engaged.
Even were we to assume that complainant established a prima facie case
regarding claim 2, we find that the agency articulated a legitimate,
nondiscriminatory reason for its issuance of the letter of warning to
complainant, i.e., complainant's failure to follow an instruction.
Complainant failed to show by a preponderance of the evidence that
the agency's reason was mere pretext to mask unlawful discrimination.
Further, construing the evidence to be most favorable to complainant,
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's protected
class.
The agency's finding of no discrimination 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
August 24, 2005
__________________
Date
1Person A's supervisor also supervised
complainant.