0120070923
07-07-2009
Zipporah N. White, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Zipporah N. White,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120070923
Agency No. 1H-304-0032-06
DECISION
On December 7, 2006, complainant filed an appeal from the agency's
November 24, 2006 final decision concerning her equal employment
opportunity (EEO) complaint alleging 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 deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Casual Clerk at the agency's Atlanta Bulk Mail Center Annex
in Atlanta, Georgia. The record reflects that at approximately 9:30
a.m. on June 16, 2006, complainant was playing cards at a table with
three employees in a break room. Complainant alleged that a co-worker
(male) that was also present in the room reached over and rubbed
the lower part of her right leg with his hand. Complainant voiced
her displeasure with the co-worker's action at that time. Later in
the day, the co-worker learned that complainant was upset because of
the incident, and he apologized to complainant for touching her leg.
Complainant subsequently informed two supervisors about the incident.
On June 17, 2006, a supervisor conducted a formal investigation into the
incident. Statements were obtained from complainant and the co-worker
confirming that the incident had occurred. The co-worker apologized,
stated that he was "just playing around," and noted that he did not
mean to make complainant feel uncomfortable. Complainant stated that
she objected to complainant's conduct and alleged, for the first time,
that the co-worker had also pinched her one to two months prior to the
June 16, 2006 incident.
The supervisor interviewed four additional witnesses/employees during
the investigation. One employee (male) had no recollection of the
incident but indicated that he had seen complainant and the co-worker
"playing and joking." Another employee (male) indicated that he only
observed a "playful tap, nothing sexual." A third employee (male) stated
that he was not present for the incident, but he had previously observed
"friendly behavior" between complainant and the co-worker. The fourth
employee (female) stated that she did not personally see the co-worker
touching complainant, but she was present in the room and "[i]t appeared
that they were joking around." The female employee also noted that she
had previously observed complainant and the co-worker speak or touch each
other in a "playful manner." The supervisor conducting the investigation
determined that the co-worker had touched complainant on the lower leg,
but he did not touch her in a "sexual nature." The supervisor also found
that complainant and the co-worker had exhibited a playful relationship
"on a regular basis." On July 20, 2006, the co-worker was issued a
Notice of 7-Day No Time Off Suspension for improper conduct.
Complainant initiated EEO Counseling and filed an EEO complaint, dated
August 28, 2006, alleging that she was discriminated against on the basis
of sex (female) when, on June 16, 2006, she was sexually harassed by a
co-worker.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that she was subjected to sexual harassment as alleged.
Specifically, the agency's decision found that complainant failed to
establish a prima facie case of sexual harassment, that complainant failed
to establish pretext, and that management took immediate and appropriate
corrective action as soon as complainant notified her supervisor of the
alleged sexual harassment.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal. In response to the
appeal, the agency urges the Commission to affirm its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
It is well-settled that sexual harassment in the workplace constitutes
an actionable form of sex discrimination under Title VII. Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish
a prima facie case of sexual harassment, the complainant must prove,
by a preponderance of the evidence, the existence of five elements: (1)
that she is a member of a statutorily protected class; (2) that she was
subjected to unwelcome conduct related to her sex; (3) that the harassment
complained of was based on her sex; (4) that 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) that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
In a case of co-worker harassment, an agency is responsible for acts
of harassment in the workplace where the agency (or its agents) knew
or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action. See EEOC Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, No. 915.002 (June 18, 1999); 29 C.F.R. � 1604.11(d).
In the present case, the Commission finds that complainant failed to
establish her case of sexual harassment because there is no basis for
imputing liability to the agency. Although complainant is a member of
a statutorily protected group, and she alleged that she was subjected
to unwelcome conduct related to her sex, we find that the agency
responded to complainant's harassment allegation in an immediate and
appropriate manner. The record reflects that management officials
began an investigation soon after they became aware of the alleged
sexual harassment and took corrective action in the form of issuing
the co-worker a Notice of 7-Day No Time Off Suspension. Additionally,
we note that complainant reported no further incidents of harassment
after the agency took corrective action. Given that we find that the
agency took appropriate prompt remedial action, we find the agency not
liable for the alleged harassment.
CONCLUSION
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in the decision, the agency's
final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
_____07-07-09_____________
Date
2
0120070923
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120070923