01A12577
06-11-2002
Gwendolyn V. Gordon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Gwendolyn V. Gordon v. United States Postal Service (Southwest Area)
01A12577
June 11, 2002
.
Gwendolyn V. Gordon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A12577
Agency No. 1G741001800
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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Casual Clerk, E-07, at the agency's Processing and Distribution
Center in Tulsa, Oklahoma. Complainant sought EEO counseling and
subsequently filed a formal complaint on February 18, 2000, alleging that
she was discriminated against on the bases of her sex, race (Black), age
(D.O.B. October 2, 1949), and reprisal (for prior EEO activity) when,
on November 10 and 20, 1999, she was sexually harassed by maintenance
personnel and management when they allegedly forced themselves on her
by touching her back.
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.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race, sex, age, or reprisal discrimination.
The FAD noted that complainant failed to identify any similarly situated
individual who was treated more favorably under similar circumstances.
The FAD further concluded that complainant failed to show, by a
preponderance of the evidence that the agency's articulated reasons
were pretextual.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD
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 agency analyzed the complaint under the theory
of disparate treatment rather than applying the law developed under
the theory of harassment. Based on the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), in order to prevail on a
claim of harassment, complainant must prove that: (1) she was subjected
to harassment that was sufficiently severe or pervasive to alter the terms
or conditions of employment and create an abusive or hostile environment;
and (2) the harassment was based on her membership in a protected class.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997).
In the instant case, a Maintenance employee (M1), named by complainant
as an individual who touched her, states that he does not recall touching
complainant, but that if he did so, he was trying to get around her to fix
the machine and it was purely unintentional. See Record of Investigation
(ROI), Affidavit H. A Supervisor of Distribution Operations (S1) states
that he touched complainant, but he did so because she had a headset on
and did not respond to him when he called her name. Id. at Affidavit B.
S1 states that he had approached complainant because he needed her
help on the machines. Id. He additionally explains that complainant
yelled at him and told him not to touch her, and that he apologized and
explained that he was just trying to get her attention. Id. In addition,
a Supervisor of Maintenance Operations (SMO) asserts that after he learned
of complainant's claim that S1 had touched her and she did not like it,
he instructed S1 to stay away from complainant. Id. at Affidavit D.
We find that the evidence in the record is insufficient to support a
finding that management's actions towards complainant were based on either
her sex, race, age or reprisal. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
We also do not find that the challenged actions are sufficiently severe
or pervasive to alter the terms or conditions of employment and create
an abusive or hostile environment.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and 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
June 11, 2002
__________________
Date