01973359
09-10-1999
Denise Newels, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Denise Newels, )
Appellant, )
) Appeal No. 01973359
v. ) Agency No. 1F-904-1041-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of sex (female), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges she was discriminated against when
she was sexually harassed by her Acting Supervisor between September 1,
1995 and March 22, 1996. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED AS MODIFIED.
The record reveals that during the relevant time, appellant was employed
as a Distribution Clerk at the agency's Los Angeles, California Bulk
Mail Center. Appellant asserts that her Acting Supervisor (AS) began
sexually harassing her in September 1995, when he asked her out on a date.
In October, 1995, appellant asserts that AS asked for her home phone
number, and in November of 1995, AS commented that appellant's dress
�really brings you out.�
In addition, appellant alleges that in February of 1996, AS called
her �Baby�, and she responded by informing him that her name was not
�Baby� and that his behavior was sexual harassment. After reporting
this incident to her Union Steward, appellant stated that AS told her
because she was rude, had a bad attitude and low production numbers,
she was denied a position rotation. Appellant stated that she informed
the Manager, Distribution Operations (MDO), of AS's behavior and that she
felt she was being treated unfairly. Appellant further alleges that she
felt threatened by AS, and that because she was not allowed a rotation,
she was likely to receive an unfair evaluation based on her rejection of
AS's sexual advances. AS acknowledged that he referred to appellant as
�Babe� on one occasion, but immediately apologized and informed her that
he would never call her that again. AS further stated that appellant
gave him her home phone number when he asked for it, but that he never
asked her out or commented on her clothing.
Believing she was a victim of discrimination, appellant filed a formal
EEO complaint with the agency on June 18, 1996, alleging that the agency
had discriminated against her as referenced above. After appellant failed
to request a hearing, the agency issued a FAD, finding no discrimination.
In its FAD, the agency considered appellant's allegations under the
standard set forth in Meritor Savings Bank F.S.B. v. Vinson, 477 U.S. 57
(1986), and found that although she demonstrated that she is a member of
a protected class, she failed to establish a prima facie case of sexual
harassment or harassment based on sex. In so finding, the FAD stated that
appellant failed to demonstrate that she had been subjected to a hostile
work environment. The FAD further found that in any event, the agency
articulated legitimate, nondiscriminatory reasons for its actions, namely,
that AS was assigned to a nonsupervisory position in another unit once the
allegation of sexual harassment came to management's attention in April
of 1996. Further, the FAD noted that management investigated appellant's
allegations of sexual harassment, issued a letter of instruction to AS and
required him to attend sexual harassment and conflict resolution training.
Finally, the FAD found that although appellant was not reappointed to her
position in September of 1996, due to poor attendance and punctuality,
she failed to demonstrate that the agency's reasons were pretext for
intentional discrimination. Thus, the FAD concluded that the agency
did not discriminate against appellant based on her sex.
The Commission's "Guidelines on Discrimination Because of Sex"
identify two types of sexual harassment: (1) "quid pro quo" harassment,
where "submission to or rejection of (unwelcome sexual) conduct by
an individual is used as the basis for employment decisions affecting
such individual" and (2) "hostile environment" harassment, where "such
conduct has the purpose or effect of unreasonably interfering with an
individual's work performance or creating an intimidating, hostile,
or offensive environment." Although "quid pro quo" and hostile work
environment harassment give rise to distinct claims, "the line between
the two is not always clear and the two forms of harassment often occur
together." EEOC Policy Guidance on Current Issues of Sexual Harassment at
p. 2 (March 19, 1990). In this case, although not addressed by the FAD,
appellant appears to be raising allegations of both types of harassment.
That is, appellant asserts that she did not receive a position rotation
and was likely to receive an unfair evaluation due to her refusal to
accept AS's date invitation. Appellant also generally alleged that AS's
unwelcome advances and comments resulted overall in an intimidating and
threatening environment so as to establish sexual harassment.
We initially modify the FAD to include the finding that appellant failed
to establish a prima facie case of �quid pro quo� sexual harassment.
Appellant asserted AS asked her out, and AS has adamantly denied
this occurred. In this case, appellant has provided no evidence
corroborating her claim that AS asked her out on a date in September 1995.
She made no contemporaneous complaint and has no witness with whom she
discussed the incident or who could make relevant observations about
her demeanor afterwards. Patton v. United States Postal Service, EEOC
Appeal No. 01962729 (March 24, 1998). Further, there is no evidence
that links appellant's refusal of AS's date invitation to the denial of
an employment benefit or her ultimate failure to be reappointed at the
facility. EEOC Guidance, at 15-16. Appellant has also failed to produce
evidence, even on appeal, that she was treated less favorably than other
similarly situated employees with regard to position rotation and her
formal evaluation. Therefore, based on the lack of credible evidence that
appellant was subjected to conduct of a sexual nature, the Commission
finds she has failed to meet her burden of establishing a critical
element of a prima facie case of �quid pro quo� sexual harassment.
In addition, based on the totality of the evidence, the Commission
finds that the comments of AS as alleged by appellant are isolated
incidents which are not sufficiently severe or pervasive to rise to the
level of a hostile work environment. Faragher v. City of Boca Raton,
118 S.Ct. 2275 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993). Furthermore, the Commission finds that assuming, arguendo,
that the actions of AS such as commenting on appellant's dress and
calling her �Baby� constituted sexual harassment based on a hostile work
environment, appellant failed to establish a prima facie case regarding
these allegations because the agency took prompt remedial action when
management learned of appellant's complaints. The evidence establishes
that management was notified of AS's behavior by the Union Steward on
April 11, 1996. The MDO testified that on April 17, 1996, AS was issued
written instructions to refrain from the actions as described by appellant
and the next day was moved to another work location. On May 14, 1996,
following an investigation, AS was informed that he would no longer
serve in a supervisory position and he was required to attend Sexual
Harassment and Conflict Resolution Training in June 1996. In addition,
the record reflects that after informing AS that calling her �Baby� was
sexual harassment, AS promptly apologized and said he would not call
her that again. The Commission finds that even if the actions of AS
constituted a hostile work environment, the agency met its burden in
taking prompt remedial action, and thus appellant failed to establish
a critical element of a prima facie case of sexual harassment based
on a hostile work environment. Garcia v. Department of the Air Force,
EEOC Appeal No. 01934762 (September 12, 1994).
After a careful review of the record, and for the foregoing reasons,
it is the decision of the Commission to AFFIRM AS MODIFIED the FAD which
determined that no discrimination had occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
September 10, 1999
_______________ ___________________________________
DATE Frances M. Hart Executive
Officer
Executive Secretariat