Denisha Choice, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.

Equal Employment Opportunity CommissionMar 31, 2005
01a40796 (E.E.O.C. Mar. 31, 2005)

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.