Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 4, 2013

0120113890 (E.E.O.C. Sep. 4, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120113890

Agency No. 1F-908-0021-10

DECISION

On August 5, 2011, Complainant filed an appeal from the Agency’s July 7, 2011, 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 Commission deems the appeal timely and accepts it for de
novo review 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 events giving rise to this complaint, Complainant worked as a Maintenance
Support Clerk at the Agency’s Processing & Distribution Center in Long Beach, California.
On December 28, 2010, Complainant filed an EEO complaint alleging that she was harassed
on the bases of sex and in reprisal for prior protected EEO activity. The incidents identified as
supporting these claims include the following:

• Since 2007, she has noticed her supervisor staring at her in a suggestive manner;
• During February 2009, her supervisor and a co-worker crudely teased her making rude
and suggestive comments about "private activities with men;"
• During July 2009, her supervisor sent her an unsolicited e-mail in which he asked if she
would be meeting up with a male co-worker, and after Complainant told him it was
none of his business, he made several rude, explicit, and suggestive sexual comments
forecasting Complainant's activities with men while on vacation;
• During August 2009, a co-worker made inappropriate sexual comments to Complainant
in the presence of her supervisor, yet the supervisor did not take any action;
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• During December 2009, Complainant's supervisor made snide remarks to her and
implied that she was a "fallen woman" who was "living in sin";
• At the end of December 2009, next to Complainant's name on the schedule, her
supervisor wrote, "enjoy your last Saturday off, HO, HO, HO," and when Complainant
confronted him, he did not deny the insult nor did he apologize or take it down;
• During February 2010, Complainant became aware that a co-worker and her supervisor
were discussing her relationship in a loud, rude, and suggestive manner;
• During March 2010, after expressing her belief that she was being subjected to sexual
harassment, her supervisor belittled her concerns and called her "Latina Elizabeth
Taylor;"
• Since September 2010, Complainant's schedule change requests have been denied and
she has been given undesirable/additional work assignments;
• During October 2010, she was denied FMLA forms; and
• Her requests to bank her holiday hours for Columbus Day and Veteran's Day were
denied.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

To prove her harassment claim, Complainant must establish that she was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in her position would have
found the conduct to be hostile or abusive. Complainant must also prove that the conduct was
taken because of a protected basis, i.e., in this case, sex or prior protected activity. Only if
Complainant establishes both of those elements, does the question of Agency liability present
itself.

First we note that we do not have the benefit of an Administrative Judge’s credibility
determinations after a hearing because Complainant failed to request one. Review of the
record reveals a significant disparity between Complainant’s version of events and her
supervisor’s. There is objective evidence in the record in the form of emails that establishes
that Complainant’s supervisor did make some inappropriate comments. However, whether or
when Complainant actually ever complained about them is not clear, and it is clear from the
record that Complainant’s affidavit does not paint the whole story, especially with regard to the
co-worker. We note that Complainant’s brief in support of her appeal, submitted via counsel,
only adds to the considerable confusion.

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Because Complainant declined a hearing, we can only evaluate the facts based on the weight of
the evidence presented, and we conclude that in the context of this case, it is impossible to
ascertain whose version of events is most worthy of belief. Because Complainant bears the
burden of proof and she has not met it by a preponderance of the evidence, her claim of
harassment fails, and we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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

(S0610)
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
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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

(Z0610)
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

September 4, 2013
Date