0199688901a00508
01-16-2002
Sharon Lacy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon Lacy v. U.S. Postal Service
01996889 & 01A00508
01-16-02
.
Sharon Lacy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996889 & 01A00508
Agency No. 4G-720-1060-96 & 4G-720-1061-96
DECISION
Complainant timely initiated appeals of two final agency decisions (FAD)
concerning her complaints of unlawful employment discrimination on the
bases of race (Native American), sex (female), and disability (depression)
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
For the reasons stated herein, the agency's FADs are affirmed.
According to the record, complainant was employed as a Secretary,
EAS-11 at an Arkansas facility of the agency. On December 6, 1995,
complainant submitted a four-page, typewritten letter accusing a male
coworker (Coworker) of sexually harassing her for almost a year to her
supervisor (RMO). Complainant's letter alleged that coworker consistently
(1) made comments about her makeup and appearance in clothing, (2)
asked to meet complainant outside of work, (3) telephoned complainant
and used vulgar language to her, (4) groped complainant and himself,
(5) stared at complainant for long periods of time, (6) stood near
complainant's desk to hold long conversations with other persons, (7)
degraded her relationship with her husband<1>, and (8) tried to intimidate
complainant and her husband. On the same day that complainant submitted
her letter, RMO informed the agency's Human Resources Manager (HR Manager)
of complainant's allegations and, the next day, issued complainant a
letter placing her on administrative leave with pay. RMO issued coworker
a letter dated December 8, 1995 placing him on administrative leave with
pay also. Within a week of complainant's allegations, HR Manager created
a three-member investigative panel<2>, which began its investigation
the week of December 14. The investigative panel attempted to interview
complainant but complainant chose not to participate in the investigation.
Specifically, complainant informed the agency that she would have to
consult her doctor about meeting with the investigative panel and later,
in a letter dated March 12, 1996, complainant's attorney advised the
agency that complainant had chosen to pursue her claims in the EEO forum
and would not meet with the investigative panel. On April 13, 1996,
complainant filed two formal EEO complaints, which were later docketed
by the agency as 4G-720-1060-96 (Complaint 1) and 4G-720-1061-96
(Complaint 2). In complaint 1, complainant alleged that the agency
discriminated against her when it failed to assist her in stopping
coworker's sexual harassment. In complaint 2, complainant alleged that
RMO's actions regarding complainant's sexual harassment allegations are
additional examples of the harassment that began back in September 1994.
Complainant alleged that, between September 1994 and the time she filed
her complaint, RMO consistently monitored complainant's daily activities,
stared at complainant, prevented complainant from communicating with
coworkers and agency visitors, yelled at and chastised complainant,
delayed complainant's work, placed complainant in an off-duty status,
and required complainant to respond immediately to a temporary job offer.
In reference to complaint 1, RMO stated that she placed complainant on
emergency administrative leave with pay because she appeared to be in
a fragile emotional state and the potential of injury to complainant
or others and disruption in the workplace existed. RMO stated further
that complainant's allegations were handled as expeditiously as possible.
Finally, RMO stated that coworker was placed in another postal facility
and did not return to complainant's workplace. Regarding complaint
2, RMO stated that complainant failed to give an accurate account of
the specific incidents she cites as harassing and that complainant
has personal problems which do not emanate from RMO or the workplace.
RMO also stated that in many instances she acted as a confidante to
complainant and performed some of the responsibilities of complainant's
position.
An investigation was conducted for each complaint and complainant
was informed of her right to choose either a hearing before an EEOC
administrative judge (AJ) or an immediate FAD. Complainant initially
requested a hearing for each complaint but later withdrew those requests.
The agency issued FADs finding no discrimination. Regarding complaint 1,
the agency found that complainant failed to show pretext because the
agency took immediate steps to investigate and eliminate the alleged
harassment. The agency noted that complainant waited almost a year to
inform the agency of the alleged harassment and it acted swiftly once it
was notified. Regarding complaint 2, the agency found that complainant
failed to establish a prima facie case of discrimination on any of her
cited bases and, assuming she had, she failed to show pretext.
It is well-settled that sexual harassment in the workplace constitutes an
actionable form of discrimination based on sex in violation of Title VII.
Pokladowski v. U.S. Postal Service, EEOC Appeal No. 01995446 (July 27,
2000) (citing Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986)).
The Commission has held, to establish a claim 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,
(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. Adams v. U.S. Postal Service, EEOC Appeal No. 01976860
(September 15, 2000) (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).
The Commission finds that complainant failed to establish a claim of
sexual harassment.<3> Complainant alleged that coworker harassed her
for almost a year. Coworker, however, stated in an affidavit that he
and complainant had a consensual intimate relationship that began in
Winter 1994 and ended in March 1995, when complainant's spouse discovered
their relationship. Coworker stated further that complainant's husband
pressured her to make allegations against him in December 1995 because
he thought that their relationship was still ongoing. Complainant made
the allegations that coworker sexually harassed her almost a year after
the alleged harassment began. A coworker whose work space was near
complainant's stated that she did not notice any acts by coworker toward
complainant that were sexual in nature. RMO stated that complainant and
coworker had a flirtatious relationship. We find that the complainant
failed to provide sufficient evidence that the alleged events occurred
as she described.
With regard to complaint 2, we find that complainant has not established
that she was subjected to harassment. To prevail on a claim of
harassment, a complainant must show that (1) she belongs to a protected
group, (2) she was subjected to harassment that was sufficiently severe
or pervasive to alter the conditions of her employment and create an
abusive or hostile work environment, and (3) the harassment was based on
an impermissible factor, such as race, sex, or disability. See generally
Taylor v. Dep't of the U.S. Air Force, EEOC Request No. 05920194 (July
8, 1992) (agency acknowledged that the events alleged by complainant
happened in some form and could be considered harassing in nature.)
Complainant failed to show that she was subjected to the harassing
incidents she alleged or that the alleged harassing incidents were based
upon a discriminatory motive. RMO stated that complainant describes their
daily interaction and the various incidents in a context different than
they actually occurred. The record as a whole supports RMO's contention.
RMO requested a mediation session between her and complainant for both
of them to voice concerns about their working relationship. The EAP
Coordinator who conducted two mediation sessions between complainant and
RMO stated that complainant would get very emotional when RMO would state
her concerns about complainant, so none of their issues were resolved.
In addition, the witnesses who complainant cited to corroborate her
allegations, did not do so. The witnesses, who are now and were at the
time of their affidavits, former agency employees, stated that they did
not recall the incidents about which complainant spoke. In addition,
complainant did not submit evidence which would show that others outside
of her protected class were treated more favorably or which would infer
that a discriminatory motive prompted RMO's actions. Complainant, in
her affidavit, stated that RMO was distrusting of everyone and paranoid
in general.
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, the Commission AFFIRMS the
agency's findings of no discrimination.
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
___01-16-02_______________
Date
1Complainant's husband worked at the same facility as complainant and
coworker.
2The panel consisted of agency employees who work outside of complainant's
district.
3For the purpose of analysis throughout this decision, we assume that
complainant is an individual with a disability.