01990016_r
11-19-2001
Marcelle Schvimmer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marcelle Schvimmer v. U.S. Postal Service
01990016
November 19, 2001
.
Marcelle Schvimmer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01990016
Agency No. 4-H-330-1534-95
Hearing No. 150-96-8370X
DECISION
Complainant timely filed an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant, a Human Resources Associate at the agency's General
Mail Facility in Miami, Florida, claims that she was subjected to
sexual harassment due to a hostile work environment. Specifically,
complainant contends that a named co-worker (CO) berated her work
performance, and subjected her to sexually offensive comments as well
as sexually offensive staring and touching, for a period of years.
Complainant's predominate claim is that CO constantly groped himself
in the genital area, and on several occasions touched her arm with the
same hand immediately after groping himself. Complainant also contends
that CO came into physical contact with her in general in the work place;
and that he would also enter a small �satellite� room containing radio
equipment for the sole purpose of brushing his arm across her breasts.
Additionally, complainant contends that CO made jokes inferring that
complainant sexually stimulated her male dogs by bathing them in the
shower; made comments that she was unfaithful to her husband; referred
to her as a �hot mama;� and may have placed photographs of female sex
organs on her desk in 1994.
In addition to the above, complainant also contends that CO treated
her with disrespect and harshly criticized her work, which culminated
in an incident on June 14, 1995, when CO publically yelled at her,
causing her humiliation and stress. Complainant additionally contends
that she reported CO's conduct to several supervisors on many occasions,
but that they failed to respond. Complainant further avers that other
female staff reported CO for various types of sexually offensive conduct,
but that management also failed to respond to these reports as well.
Furthermore, complainant contends that CO's conduct, and the agency's
lack of a response, caused her to develop post traumatic stress disorder.
The record reveals that complainant initiated the EEO process after the
June 14, 1995 yelling incident, and filed a formal EEO complaint on August
21, 1995, claiming that she had been subjected to sexual harassment by CO
as described above. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a three day hearing,
the AJ issued a decision finding that complainant failed to establish
a prima facie case of sexual harassment due to a hostile work environment.
In reaching this decision, the AJ first determined that CO's conduct was
not sexual in nature. The AJ found that witness testimony established
that CO engaged in crotch groping continuously, whether alone or in the
presence of others, and that this conduct was no more than a nervous
habit with no sexual connotations. The AJ also found that none of
the witnesses observed CO touch anyone after crotch groping, and found
that while complainant testified that she was offended by this purported
conduct, she did not construe it as a sexual touching or assault. Next,
the AJ also determined that the general workplace touching claimed by
complainant represented a common occurrence among all of the workers
because of the very small work area. Regarding CO's presence in
the satellite room, the AJ found that complainant failed to provide
persuasive evidence to support her claim that CO had no reason to be in
that room alone with her, noting that witness testimony established that
complainant often asked co-workers to assist her in the satellite room.
As to the claimed �breast brushing� the AJ found that this was conduct
not sexual in nature because two working people in the satellite room
would invariably come into physical contact with each other, noting the
complainant did not testify that CO engaged in any intentional touching
or grabbing, but merely brushed past complainant. Last, regarding CO's
yelling and harsh/disrespectful treatment of complainant, including the
June 14, 1995 incident, the AJ determined that this conduct constituted
a criticism of complainant's work performance, having no sexual content.
The AJ additionally determined that complainant failed to establish a
prima facie case of sexual harassment because she failed to established
that CO's conduct was directed to her because of her sex. In this
regard, the AJ determined that witness testimony demonstrated that
CO treated everyone, male and female alike, in the same derogatory,
offensive, and disrespectful manner, and complainant was no different
in this regard. While the AJ noted that complainant disputed this,
she found that complainant offered only unsupported statements.
Next, the AJ found that complainant failed to show that CO's claimed
conduct was sufficiently severe and pervasive as to rise to the level
of harassment. Specifically, the AJ found that CO spent very little
time in complainant's work area, and had very little opportunity to come
into contact with her. Additionally, the AJ noted that while complainant
presented testimony from her therapist to demonstrate that she suffered
emotional harm, the AJ found that there was no evidence that anyone else
exposed to this same conduct claimed that it adversely impacted their
work or otherwise caused emotional harm. The AJ further found that the
testimony of complainant's therapist established that complainant's was
an overly sensitive individual, and held that Title VII protection did
not reach this far.
Finally, the AJ determined that because complainant failed to establish
her claim of sexual harassment due to a hostile work environment, the
agency was not obligated to undertake any remedial action.
In its final decision, the agency concurred with the AJ's recommended
decision and found no discrimination.
On appeal, complainant submits a detailed statement, along with a copy
of her closing argument and brief presented at the hearing, arguing that
the AJ committed reversible error in the factual findings supporting
her conclusion that complainant failed to establish a prima facie case
in this matter. In support of this claim, complainant restates and
embellishes the arguments previously made at the hearing. In response,
the agency requests that we affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The claim before us is one of sexual harassment due to a hostile work
environment. As set forth by the AJ in her decision, to establish an
actionable claim of sexual harassment due to a hostile work environment,
complainant must show:
(1) that she belongs to a statutorily protected group;
(2) that 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) that the harassment complained of was based on sex; and
(4) the conduct unreasonably interfered with her work performance or
engendered an intimidating, hostile or offensive working environment.
See 29 C.F.R. � 1604.11(a); Jones v. Flagship International, 793 F.2d
714, 719-722 (5th Cir. 1986); Henson v. City of Dundee, 682 F.2d 897,
903-905 (11th Cir. 1982); see also Bundy v. Jackson, 641 F.2d 934
(D.C. Cir. 1981); Katz v. Dole, 709 F.2d 251 (4th Cir. 1983).
Moreover, in addressing the fourth element, the Supreme Court, in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that
harassment due to a hostile work environment is actionable only if
the conduct is sufficiently severe or pervasive so as to result in an
alteration of the conditions of the appellant's employment. See also
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. 510 U.S. at 3. Furthermore, in assessing
whether the alleged harassment affected a term, condition or privilege
of complainant's employment, the conduct at issue must be viewed in the
context of the totality of the circumstances, considering, inter alia,
the nature and frequency of offensive encounters and the span of time
over which the encounters occurred. See 29 C.F.R. � 1604.11(b); Gilbert
v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1993); EEOC Policy
Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137
(March 19, 1990). In Faragher v. City of Boca Raton, 118 S. Ct. 2275
(1998), the Supreme Court stated that: �simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the �terms and conditions of employment.'�
Here, we find that the record shows that CO was a driving instructor,
and that his primary duties were performed in a location away from
complainant's work facility. Record testimony describes CO's presence at
complainant's facility as �very infrequent� and only �on occasion,� for
time periods of only approximately one hour. We also note that the record
indicates that complainant ate lunch at the cafeteria in complainant's
facility, and that some of the identified conduct occurred there. We also
find that the record shows that during periods when CO's work was slow,
he spent more time at complainant's facility performing miscellaneous
duties, and that he also, on occasion, conducted classroom sessions for
trainees at complainant's facility. In her testimony and in other
record statements, complainant herself indicates that she and CO worked
together only on occasion.
After carefully considering this evidence, we concur with the AJ that the
limited amount of time complainant and CO overall spent in proximity of
each other limits the opportunity for the claimed offensive conduct, and
mitigates against a finding that it created a �hostile work environment.�
Moreover, notwithstanding complainant's arguments to the contrary,
we concur with the AJ that the evidence of record clearly establishes
that the primarily conduct complained of, i.e., CO's crotch groping,
was merely a nervous habit not intended to convey any sexual overtone,
and that this conduct was not directed exclusively toward complainant. We
also concur with the AJ that the identified incidents of touching appear
to be innocuous and accidental in nature, the result of small confined
work areas. Regarding the identified verbal conduct, we also concur with
the AJ that the record demonstrates that most of these incidents concerned
work-related matters, and had no sexual component to them. While we also
find that complainant otherwise identified certain comments and jokes
which were sexual in nature, we find that these incidents constitute no
more than occasional teasing and would not cause discriminatory changes
in complainant's work environment. See Faragher, supra.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We find that the AJ
properly found that complainant failed to prove that she was subjected
to a hostile working environment and/or that the agency failed to take
appropriate actions in response to complainant's complaints about the
alleged harassment. We discern no basis to disturb the AJ's decision.
Therefore, based on our review, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, and for the reasons set forth
above, we AFFIRM the agency's final decision, which concurred with the
AJ's recommended decision.
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
November 19, 2001
__________________
Date