01A23894_r
04-03-2003
Patricia C. White v. United States Postal Service
01A23894
April 3, 2003
.
Patricia C. White,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23894
Agency No. 1H-331-0036-00
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her 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 record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's Miami Processing
and Distribution Center, in Miami, Florida. Complainant sought EEO
counseling and subsequently filed a formal complaint on March 7, 2000,
alleging that she was discriminated against on the bases of sex and
in reprisal for prior protected activity when on November 22, 1999,
she was harassed and touched in an unprofessional manner.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. The record
in this case reflects that complainant initially requested a hearing;
but that the request was subsequently withdrawn. The agency thereupon
issued a final agency decision that is the subject of the instant appeal.
In its final decision, the agency found that complainant failed to
establish a prima facie case of sexual harassment. Further, the agency
concluded that complainant failed to establish a prima facie case
of retaliation for prior protected activity. The agency found that
while complainant showed that she engaged in prior protected activity,
her supervisor was not aware of her prior protected activity and that
complainant could not prove a causal connection between the November
1999 incident and her prior protected activity.
To establish a prima facie case 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 McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). 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 (March 8, 1994).
Here, the record reflects that complainant informed her supervisor that
she determined that his behavior was unwelcome on November 22, 1999,
and that she complained to a co-worker about her supervisor's actions.
The record contains a copy of the co-worker's statement wherein she stated
that after complainant informed her of the alleged touching incident,
she immediately questioned the supervisor who finally admitted to the
touching, but who stated that it was �nothing personal.�
Applying the standards set forth above, however, the Commission finds
that there is substantial evidence of record supporting the agency's
determination that complainant was not subjected to sexual harassment.
We note in her affidavit dated July 7, 2000, complainant stated that
on November 22, 1999, her supervisor placed his hands on her waist,
rubbing against her, and laughed when she asked him about making copies
of military orders. We find that the weight of evidence shows that the
event of November 22, 1999, was not sufficiently severe or pervasive
to affect complainant's work environment. See Bloomer v. Department of
Transportation, EEOC Petition No. 03980137 (October 8, 1999).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim, according with
the burdens set forth in McDonnell Douglas, and Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran
Affairs, EEOC Request No. 05960473 (November 20, 1997), complainant may
establish a prima facie case of reprisal by showing that: (1) she engaged
in protected activity; (2) the agency was aware of her protected activity;
(3) subsequently, she was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
action.
The Commission determines that the agency properly found that
complainant had not established a prima facie case of reprisal
discrimination. Specifically, the record supports a determination that
complainant failed to show that the supervisor involved in the November
1999 incident was aware of her prior EEO activity.The Commission
determines that the agency properly found no discrimination on the
bases of sex and in reprisal for prior protected activity. Accordingly,
the agency's final 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
April 3, 2003
__________________
Date