01A12634
06-20-2001
Indra E. Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Indra E. Martinez v. United States Postal Service
01A12634
06-20-01
.
Indra E. Martinez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12634
Agency No. 1F-918-0021-98
Hearing No. 340-99-3349X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant claims that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e, et seq., in connection with an
occurrence on June 8, 1998, that she characterized as sexual harassment.
She identified the distribution operations manager as the responsible
official. The agency investigated the complaint and thereafter referred
it to an Administrative Judge, who issued a decision of no discrimination
without holding a hearing. The agency accepted the AJ's decision in
its final order. This appeal followed.
The agency employed complainant as a parcel post distribution clerk at
its processing center in City of Industry, California. On June 8, 1998,
the distribution operations manager and four supervisors were standing
together as complainant passed them on her way out for the day. After she
passed, the distribution operations manager remarked that complainant was
going out into the parking lot to have oral sex with another employee,
or words to that effect. Although the manager made the remark outside
of complainant's earshot, she was subsequently told about it by her
ex-husband, and by a female co-worker. After investigating the incident,
the agency fired the distribution operations manager in August 1998.
The Commission has repeatedly held that, unless the conduct complained
of is very severe, a single incident will not be regarded as sexual
harassment. Hayes v. United States Postal Service, EEOC Appeal
No. 01954703 (January 23, 1998), request for reconsideration denied EEOC
Request No. 05980372 (June 17, 1999); Taylor v. Department of the Army,
EEOC Appeal No. 01942699 (March 7, 1996), request for reconsideration
denied EEOC Request No. 05960405 (August 7, 1997). Policy Guidance on
Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 (March
19, 1990), at p. 16 & nn. 23-24. Where, as here, the occurrence is a
one-time remark, which complainant learned about second-hand, and for
which the agency immediately took corrective action, its effects are not
severe enough to rise to the level of sexual harassment. Moregenstern
v. Department of the Navy, EEOC Appeal No. 01976827 (August 19, 1999).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
___06-20-01_______________
Date