01a40796
03-31-2005
Denisha Choice, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Denisha Choice v. United States Postal Service
01A40796
March 31, 2005
.
Denisha Choice,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01A40796
Agency No. 4A-110-0026-03
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier at the agency's Forest Hills Post Office facility in
Queens, New York. Complainant sought EEO counseling and subsequently
filed a formal complaint on January 17, 2003, alleging that she was
discriminated against on the bases of race (African-American) and sex
(female) when:
(1) on November 7, 2002, she was issued of Letter of Warning for
attendance infractions and
on November 8, 2002, her supervisor (S1: Caucasian, male) sexually
harassed her.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision on the sexual harassment
claim.<1>
In its FAD, the agency concluded that complainant was not subjected to
sexual harassment. Specifically, the agency found that the conduct
complained of was not limited to complainant's gender, but her male
colleagues were also touched by S1. The agency also found that S1's
touching of employees, although irritating, was not sexual in nature.
The agency further found that, even if true, S1's conduct did not rise
to the level of actionable sexual harassment.
On appeal, complainant contends makes no new contentions. The agency
did not file a response.
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 patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group
of isolated incidents will 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 Title VII 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).
In order to establish a prima facie case of such 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
group; (2) that she was subjected to unwelcome sexual advances, requests
for sexual favors, or other verbal or physical conduct of a sexual nature;
(3) that the harassment of which she complained is based on sex; and
(4) that the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with her
work environment and/or creating an intimidating, hostile, or offensive
work environment; and (5) that there is a basis for imputing liability
to the employer. Henson v. City of Dundee, 682 F.2d 987, 903-05
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's situation.
Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice
No. 915.002 (March 8, 1994).
The Commission finds that, while complainant identified a series of events
and circumstances she found to be unpleasant or demeaning, the acts do
not appear to constitute a sexual advance or otherwise represent conduct
of a sexual nature. Although S1 testified otherwise, the overwhelming
evidence in the record establishes that S1 routinely touched both men
and women when he spoke to them. Finally, the Commission notes that
there was no evidence to show that agency officials had any knowledge
of complainant's sexual harassment allegations until she sought EEO
counseling. The incidents cited over a three and a half year period
where S1 rubbed complainant's shoulders and back, are not so severe or
pervasive to entitle complainant to relief under the federal employment
discrimination laws. See Lynch v. United States Postal Service, EEOC
Appeal No. 01981027 (July 16, 1999). As a matter of law, if the conduct
at issue is not sufficient to render the work environment hostile,
then no reasonable fact-finder could find in complainant's favor.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
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
March 31, 2005
__________________
Date
1The record reflects that complainant withdrew the claim regarding the
Letter of Warning because it had been settled.