01A12322
06-26-2002
Florence L. Wyche, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Florence L. Wyche v. United States Postal Service
01A12322
June 26, 2002
.
Florence L. Wyche,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A12322
Agency No. 4G-700-1200-94
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 PS-5, Transitional Employee at the agency's Marrero Post
Office in Louisiana. Complainant contends that on March 7, 1994, while
she was assisting a new employee case her route, she was subjected to
sexual harassment by her supervisor (S1: White male). Specifically,
the record reflects that complainant asked S1 if he also wanted her to
assist the new co-worker in delivering the route. Complainant contends
that S1 commented as to where he was going to send her before grabbing
her neck from behind which made her very uncomfortable.
The record also reflects that on December 20, 1993, after cutting
her hair, S1 made a comment that he liked long hair and suggested
that complainant grow hers back. Complainant stated that she reported
these incidents to the Postmaster, the Acting Supervisor, and her union
representative. S1 disputes that he ever touched, grabbed or made bodily
contact with complainant.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 19, 1994, alleging that she was discriminated against
on the bases of race (Black) and sex (female) when on March 7, 1994,
she was harassed by S1 who grabbed her on the back of her neck and
commented about where he was going to send her, and when S1 commented
that he like complainant's hair the way it was before she cut it.
On September 27, 1996, 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. However, prior to submission of the investigative file
by the agency, complainant requested a hearing before an AJ on July 24,
1996, due to the agency's failure to complete the investigation with
180 days. Instead of the agency honoring complainant's request for a
hearing when the investigation was completed, the agency issued a final
decision on the merits. The decision was issued on February 24, 1997,
finding no discrimination.
Complainant appealed to the Commission arguing that she had requested
a hearing before an AJ in a timely manner. In EEOC Appeal No. 01973534
(May 30, 2000), the Commission ordered the agency to honor complainant's
request for a hearing. However, prior to the scheduled hearing,
complainant withdrew her hearing request and instead requested a final
decision by the agency.
In its FAD dated January 11, 2001, the agency concluded that
complainant failed to establish a prima facie case of sexual harassment
discrimination. Specifically, the agency found that complainant failed
to show that she was subjected to unwelcome sexual advances, requests for
sexual favors, or other verbal and/or physical conduct of a sexual nature.
The agency also found that complainant did not show any type of harassment
that had the purpose or effect of unreasonably interfering with her work
environment by making the environment intimidating, hostile or offensive.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
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. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (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); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. Harassment is actionable only if the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
The courts and the Commission distinguish between harassment that results
in a tangible employment action and harassment that creates a hostile
work environment. See Burlington Indus. v. Ellerth, 524 U.S. 742,
760-65, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of
Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998);
EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002, at 2, n. 7 (June 18, 1999).
It is this dichotomy that determines whether the employer can raise the
affirmative defense to vicarious liability. (While the Faragher and
Ellerth decisions addressed sexual harassment, the Court's analysis
drew upon standards set forth in cases involving harassment on other
protected bases. The Commission has always taken the position that the
same basic standards apply to all types of prohibited harassment.<1>
Thus, the standard of liability set forth in the decisions applies to
all forms of unlawful harassment.)
To establish a prima facie case of hostile environment harassment based
on sex or race, complainant must show the existence of four elements: (1)
she is a member of a statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Humphrey v. United
States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29
C.F.R. � 1604.11. The harasser's 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).
After a careful review of the record, the Commission agrees with the
agency's conclusion that complainant did not establish a prima facie
case of sexual harassment. Complainant has only alleged the occurrence
of two incidents, neither of which resulted in any tangible employment
action, i.e. that S1 grabbed the back of her neck and commented where
he was going to send her, and that after the neck incident, S1 told
complainant that he liked her with long hair.
While we question whether the record evidence supports these claims,
even assuming, arguendo, that S1 did what complainant alleges, the two
incidents do not cumulatively amount to severe and/or pervasive conduct.
Consequently, we find that complainant failed to present sufficient
evidence to show that she was in fact subjected to discrimination on
any of her articulated bases.
Therefore, after a careful review of the record, including complainant's
contentions, the agency's response, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
decision.
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
June 26, 2002
__________________
Date
1 See, e.g., 29 C.F.R. � 1604.11 n. 1 (�The principles involved here
continue to apply to race, color, religion or national origin.�);
EEOC Compliance Manual Section 615.11(a) (BNA 615:0025 (�Title VII
law and agency principles will guide the determination of whether an
employer is liable for age harassment by its supervisors, employees,
or non-employees�).