0120100170
01-04-2012
Demita J. Bryant, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Demita J. Bryant,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120100170
Hearing No. 530-2009-00125X
Agency No. 1C-251-0012-08
DECISION
On October 8, 2009, Complainant filed an appeal from the Agency’s
September 3, 2009, final order 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
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Distribution Clerk at the Agency’s Processing and Distribution
Center in Charleston, West Virginia. On October 3, 2008, Complainant
filed an EEO complaint alleging that the Agency discriminated against
her on the bases of her race (African-American) and sex (female) when
she was subjected to harassment by a co-worker and management did not
take appropriate steps to protect her.
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). Complainant
timely requested a hearing. The AJ found that, after viewing the
evidence in a light most favorable to Complainant, a decision without
a hearing was appropriate as there were no genuine issues of material
fact in dispute. The AJ issued a decision without a hearing on August
31, 2009. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing a decision
without a hearing as there are material facts in dispute. Complainant
further contends that the statements of management officials are not
worthy of belief, and she reiterates her contention that her co-worker
subjected her to unlawful race and sex harassment.
ANALYSIS AND FINDINGS
As an initial matter we note that, 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). The Commission’s regulations allow an AJ to
issue a decision without a hearing when he or she finds that there is
no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth
in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme
Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards
that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling
on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues
for trial. Id. at 249. The evidence of the non-moving party must be
believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party’s favor. Id. at 255. An issue
of fact is “genuine” if the evidence is such that a reasonable fact
finder could find in favor of the non-moving party. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.Corp., 846 F.2D
102, 105 (1st Cir. 1988). A fact is “material” if it has the
potential to affect the outcome of the case. If a case can only be
resolved by weighing conflicting evidence, it is not appropriate for
an AJ to issue a decision without a hearing. In the context of an
administrative proceeding, an AJ may properly issue a decision without
a hearing only upon a determination that the record has been adequately
developed for summary disposition. Petty v. Defense Security Service,
EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army,
EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. Harassment of an employee that would not occur
but for the employee’s race, color, sex, national origin, age,
disability, or religion is unlawful, if it is sufficiently severe
or pervasive. Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). A single incident or group
of isolated incidents will generally not be regarded as discriminatory
harassment unless the conduct is severe. Walker v. Ford Motor Co., 684
F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently
severe to trigger a violation of the anti-discrimination laws must
be determined by looking at all of the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance,
and whether it unreasonably interferes with an employee’s work
performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993);
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994) at 3, 6. The harassers’ 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).
An agency is responsible for acts of harassment in the workplace by
complainant’s co-workers where the agency knew (or should have known)
of the conduct and failed to take immediate and appropriate corrective
action. Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002 (June 18, 1999); see Policy
Guidance on Current Issues of Sexual Harassment (March 19, 1990);
Villanueva v. Department of Homeland Security, EEOC Appeal No. 01A34968
(August 10, 2006).
In the instant case, we concur with the AJ’s conclusion that assuming
arguendo Complainant was subjected to harassment based on her sex and
race, the Agency took immediate and appropriate measures to address
the harassment. The record reveals that on July 12, 2008, there was an
incident that occurred between Complainant and a co-worker (CW1) during
which CW1 acted in an aggressive manner toward Complainant. Report
of Investigation (R.O.I.), Affidvit A; B; D; F; Exhibit 2. The record
further shows that three management officials were called to the scene
to separate CW1 and Complainant. Id. Statements were then taken from
both Complainant and CW1, as well as witnesses to the incident, and
management subsequently scheduled Complainant and CW1 for employee
assistance program counseling. Id. Management was instructed to keep
Complainant and CW1 separated. Id. The record reflects that since July 12,
2008, there have been no additional altercations between Complainant and
CW1. R.O.I. at Affidavit A. Further, we note that the record shows that
CW1 had previously been involved in conflicts with other employees and
management officials outside Complainant’s protected classes and that
CW1 had been subjected to discipline in the past for his behavior. Id. We
concur with the AJ’s determination that assuming the harassment occurred
as alleged, the Agency took immediate and appropriate corrective action.
Accordingly, we find no basis to impute liability to the Agency.
CONCLUSION
We find that viewing the record evidence in a light most favorable to
Complainant, there are no genuine issues of material fact. We further
find that the AJ appropriately issued a decision without a hearing
finding no discrimination. Therefore, we discern no basis to disturb
the AJ’s decision and the Agency’s final order is AFFIRMED.
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 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
January 4, 2012
__________________
Date
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0120100170
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100170