01961947
10-08-1998
Portia E. Simmons, Appellant, v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service (New York Metro/Northeast Areas), Agency.
Portia E. Simmons v. United States Postal Service
01961947
October 8, 1998
Portia E. Simmons, )
Appellant, )
)
v. ) Appeal No. 01961947
) Agency No. 1A-073-1013-95
Marvin T. Runyon, Jr., )
Postmaster General, )
United States Postal Service )
(New York Metro/Northeast Areas), )
Agency. )
___________________________________)
DECISION
INTRODUCTION
On January 12, 1996, Portia E. Simmons (appellant) timely appealed the
agency's final decision, received on December 20, 1995, that it had not
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission
accepts this appeal in accordance with EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented are whether appellant was discriminated against
based on sex (female) when: (1) she received a letter of warning (LOW)
dated November 30, 1994, for an incident that took place on November 4,
1994; and (2) she was subjected to a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, appellant contends that the agency failed to properly address
all of the issues; that the witnesses supporting the responsible official
(RO) made false accusations against her; that the agency failed to take
corrective action against the RO; and that she is still working in a
stressful and hostile environment because the RO shows sexual favoritism
towards his girlfriend. The agency contends that its final decision
correctly applies the law to the facts and should be affirmed.
BACKGROUND
The record reveals that appellant, a General Clerk, PS-5, in the
Foreign Office of the New Jersey International Bulk Mail Center,
filed a formal EEO complaint with the agency on December 20, 1994,
alleging discrimination based on race, color, and sex.<1> The agency
accepted the following allegation for investigation: whether appellant
was discriminated against because of her race, color, and sex in
that she received a letter of warning dated November 30, 1994, for an
incident that took place on November 4, 1994. We note that although
the agency's acceptance letter makes no mention of appellant's hostile
environment claim, that allegation was raised in appellant's complaint
and investigated. Following its investigation of this complaint, the
agency apprised appellant of her right to request a hearing before an
EEOC Administrative Judge or a final agency decision (FAD) based on the
existing record. Appellant requested a FAD.
In her affidavit, appellant alleged that she was discriminated
against based on sex when, on November 4, 1994, the RO berated and
ridiculed her in the presence of her co-workers. She stated that on
the night in question, the RO apparently believed there should have been
additions/deletions of employees on the overtime list which appellant had
prepared. Appellant alleges that rather than rectifying this situation
in a professional manner, the RO chose to verbally attack her and treat
her in a "subservient manner."<2>
Appellant further alleged that since March 22, 1995, when the RO was
detailed to the position of Acting Manager, Distribution Operations, (MDO)
in the Foreign Office, a hostile work environment has been created because
she is forced to work with the RO and his girlfriend (the Coworker).
Specifically, appellant cites a lack of communication; and questioning
of everything she does by the RO, including taking breaks, going to see
the union representative, and taking leave. Appellant alleges that the
Coworker, on the other hand, has constant visitors, goes on break when
she feels like it, and goes home early or takes leave when she wants to,
and nothing is said. Appellant also states that the RO sometimes gives
her a lot of unnecessary work to do while the Coworker sits around all
day and plays computer games. Appellant also states that she was issued
an LOW on June 6, 1995, on more "trumped-up charges."
The RO testified that at approximately 9:40 p.m. on November 4, 1994,
he went into the MDO's office to pick up the weekend overtime list and
noticed that the list contained the names of all his Casual employees.
He stated that when he questioned appellant as to why she would schedule
all his Casuals to work on Saturday, she became flustered. When he
repeated the question, she told him there was nothing she could do
about it. The RO then pointed out to appellant that she had scheduled
a Casual employee that he had specifically told her not to schedule.
The RO testified that appellant then began to get very angry and told him
to see the MDO about the problem. The RO responded that appellant should
have spoken to the MDO herself before she scheduled all of his Casuals.
When the RO started to walk away from appellant, she started screaming,
"You go ask [the MDO] yourself." She then told him, "Kiss my a--," and
"go f--- yourself," as she walked out of the offices. Three management
officials corroborated the RO's version of events.
Although the RO eventually admitted to a relationship with the
Coworker,<3> he denied the existence of a hostile work environment and
indicated that he treated appellant with the same respect he treated
everyone else. The RO further denied that the Coworker left the office
whenever she felt like it; he also stated that if appellant felt she
was being taken advantage of by the Coworker with frequent absences,
then appellant should inform her supervisor. The RO stated that the only
time appellant was denied the opportunity to use her leave was the week
of July 1, 1995, when she submitted a leave request for the same week
which was the bid vacation week of the Coworker. The RO noted that the
Local Memorandum of the American Postal Workers' Union provided that
only one employee in the MDO's office is allotted leave for that week
during the choice vacation period. Regarding the breaks of appellant
and the Coworker, the RO stated that the only thing he told appellant's
supervisor was that he wanted both employees to rotate their breaks so
that there was always someone available to answer the telephone.
As for going to see the union representative, the RO stated that appellant
did not request permission from her supervisor to go to the union office
or that the supervisor get her a union steward. Instead, she went on her
official break and then proceeded to the union office and had her union
representative phone the supervisor and inform him that she would be
down in his office for a while, which sometimes lasted as long as 30-40
minutes. As for the distribution of assignments, the RO stated that the
clerks had a schedule worked out where they alternated assigned duties,
such as typing, taking counts, attendance, etc., on a weekly basis.
Regarding appellant's allegation that he gave her unnecessary work,
the RO stated that it was not appellant's place to determine what was
or was not necessary; he stated that if he gave her something to do, it
was because he needed it done. Regarding alleged lack of communication,
the RO noted that appellant's supervisor was in charge of the office
and that if appellant had any questions about her job, she should see
her supervisor; he stated that appellant was also welcome to ask him
anything, but she never did. As far as the June 6, 1995 LOW, the RO
noted that it was issued by appellant's immediate supervisor, not by him.
The RO further stated that appellant was issued the LOW because she was
involved in an accident in an area where she did not belong.
In its FAD, the agency found that management offered a legitimate,
nondiscriminatory explanation for taking disciplinary action based on
the November 4, 1994 incident, i.e., appellant was disrespectful to
a supervisor. The agency noted that the record included statements
from three eyewitnesses which corroborated the issuing official's
testimony concerning appellant's remarks and behavior. In addition,
the LOW was expunged from appellant's record, effective March 4, 1995.
As for appellant's burden to establish that management's explanation was
a pretext for prohibited discrimination, the agency found that appellant
provided no evidence to show that the November 4, 1994 incident did
not occur substantially as outlined in the LOW. Furthermore, regarding
appellant's hostile environment claim, the agency noted that a single
incident is not regarded as discriminatory harassment, especially where
the complainant was disrespectful to her supervisor.
ANALYSIS AND FINDINGS
Letter of Warning
Appellant's allegation concerning the issuance of the November 1994
letter of warning constitutes a claim of disparate treatment which is
properly analyzed under the three-tiered analytical framework outlined
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983); Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981).
Applying this legal standard to appellant's allegation, the Commission
finds that the agency successfully rebutted any initial inference
of discrimination raised by appellant by articulating a legitimate,
nondiscriminatory reason for the action at issue, i.e., appellant's
disrespectful behavior towards a supervisor. After a careful review of
the record, we find that appellant failed to establish that the agency's
reason for issuing the LOW was pretext for discrimination. Specifically,
we note that there were three eyewitnesses who corroborated the RO's
version of events, and that appellant has offered no evidence, other
than very general character witnesses, to corroborate her contention
that she did not make the comments in question. Accordingly, we find
that appellant was not discriminated against as alleged.
Sexual Favoritism
The Commission notes that appellant's allegation of a hostile
work environment is premised on the fact that she was subjected to
an environment in which the Coworker was treated more favorably.
The U.S. Supreme Court has held that a violation of Title VII may be
predicated on either of two types of sexual harassment: (1) harassment
that conditions concrete employment benefits on sexual favors, i.e.,
"quid pro quo" harassment; and (2) harassment that creates a hostile or
offensive working environment. Meritor Savings Bank, F.S.B. v. Vinson,
477 U.S. 57, 62-67 (1986). Further, the Commission has held that sexual
favoritism in the workplace which adversely affects the employment
opportunities of third parties may take the form of implicit "quid
pro quo" harassment or hostile environment harassment. EEOC Policy
Guidance on Employer Liability under Title VII for Sexual Favoritism
(January 12, 1990), pp. 1-2. Nonetheless, the Commission's position on
this issue clearly establishes that Title VII does not prohibit isolated
instances of preferential treatment based upon consensual friendships
or romantic relationships. Cooper v. General Services Administration,
EEOC Appeal No. 01951368 (May 22, 1997); Thornton v. NASA, EEOC Appeal
No. 01931357 (May 19, 1994). In this regard, we note that, although
an isolated instance of favoritism towards a spouse or a friend may be
unfair, it does not constitute discrimination against men or women in
violation of Title VII because both groups are equally disadvantaged
for reasons other than their gender. See DeCintio v. Westchester County
Medical Center, 807 F.2d 304 (2d Cir. 1986), cert. denied, 108 S. Ct. 89
(1987); Miller v. Aluminum Co. of America, 679 F. Supp. 495 (W.D. Pa.),
aff'd mem., 856 F.2d 184 (3d Cir. 1988); EEOC Policy Guidance, at p. 2.
After a careful review of the record, we find that appellant's
allegations regarding sexual favoritism towards the Coworker, even if
true, constituted isolated incidents not rising to the level of sexual
harassment of appellant. We note that only one of the two letters of
warning challenged by appellant was issued by the RO. We also note
the very general nature of appellant's allegations concerning the
work environment itself and her failure to give specific information
concerning her allegations. Further, appellant failed to present
probative evidence demonstrating that the RO would have or did treat male
employees differently. See Cooper, EEOC Appeal No. 01951368; Thornton,
EEOC Appeal No. 01931357. In the absence of evidence to the contrary,
we find that male employees within appellant's workplace shared with her
the same disadvantages relative to the Coworker. Finally, we find that
appellant has not established a pattern of conduct sufficiently pervasive
or severe to amount to harassment and to create a hostile environment.
Vinson, 477 U.S. at 69. Accordingly, we find that appellant was not
discriminated against as alleged.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision and find that appellant has failed
to prove, by a preponderance of the evidence, that she was discriminated
against as alleged.
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. �1614.604(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 8, 1998
____________ ___________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1Although appellant alleged race and color discrimination in her formal
complaint, her affidavit and appeal solely address her allegation of
sex discrimination.
2We note that appellant gives no further information on this particular
incident, including what the RO allegedly said to her.
3We note that although the RO did not address his relationship with
the Coworker in his affidavit, although directly asked to do so, he
subsequently admitted to the investigator that he was involved in a
relationship with the Coworker.