01A31606
03-04-2004
Kami L. Hill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Kami L. Hill v. United States Postal Service
01A31606
March 3, 2004
.
Kami L. Hill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A31606
Agency No. 4-D-250-0022-01
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
a casual employee at the agency's Kanawha City & Charleston Annex,
Charleston, West Virginia facility. Complainant sought EEO counseling
and subsequently filed a formal complaint on February 7, 2001, alleging
that she was subjected to sexual harassment when:
(1) on July 27, 2000, her supervisor (S1) told her that she would
be fired if the injury she sustained on July 26, 2000, was reported,
so she did not submit her bill from the emergency room visit;
on approximately August 11, 2000, the Acting Supervisor (S2) told her
that she would need a crash helmet when she went out with her boyfriend
and that she would need a diaper and pacifier for her boyfriend;
on approximately August 14-19, 2000, S2 made remarks about her having
sex in different positions with her boyfriend and offered to join in;
on approximately September 4-9, 2000, S2 said that he bet that she
could not get back on time and if not, her boyfriend would have to
perform oral sex on him;
on approximately September 11-16, 2000, S2 commented to her that he
wanted her to �68" him, for her to blow him and he would owe her one;
on approximately September 25 through October 6, 2000, S1 persistently
asked her to go away with him for the Columbus Day Weekend, even though
she refused each time;
on approximately September 25 through October 6, 2000, she was told
to come into work early to case a route, but when she went to work,
S1 sat her at his desk for three hours performing any tasks that he
could find for her to do;
on approximately September 25 through October 6, 2000, S1 brought her
lunch; then later asked her if she got it;
on October 8 and 9, 2000, S1 called her at home, three times during
the night seemingly drunk;
on August 21-26, 2000, S2 made comments about her breasts;
on October 31, 2000, when she asked S2 about getting more hours, he
told her to work a corner on Summers Street and he would be her first
customer, pulling money from his wallet;
from approximately August 2000 through October 31, 2000, S2 frequently
came out on her route to check on her and bring her something to drink;
in approximately August 2000, when she delivered mail to a barbershop,
one of the employees stated, �she's as hot as S2 said she was;�
in approximately September 2000, S2 came to the hospital and assisted
her in casing mail, for no operational reason;
in September 2000, S2 put his arm around her on two different occasions;
and
in August 2000, S2 wanted to know if her boyfriend, stirred the batter,
and if she licked the beater.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of sexual harassment. Specifically, the agency
concluded that complainant failed to prove that she was subjected to
unwelcome conduct. The agency found that twenty-five craft employees
and ten management officials were interviewed concerning complainant's
sexual harassment claim, and the employees stated complainant participated
in conversations of a sexual nature in the workplace. The agency also
found that the employees testified that complainant gave no indication
that the conversations and/or comments were unwelcome; to the contrary,
she laughed, giggled and gave every indication that she enjoyed the
conversations. The agency further found that complainant testified that
the alleged harassment did not alter her working conditions. Finally,
the agency found that on October 31, 2000, when the union steward
informed the Manager of Customer Services (MCS) that complainant was
complaining about sexual harassment, the MCS sent complainant a letter
requesting information on the alleged sexual harassment, and complainant
never responded. Instead, complainant contacted an EEO counselor.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
ANALYSIS AND FINDINGS
To establish a prima facie case of sexual harassment, complainant must
show that: (1) she belongs to a statutorily protected class; (2) she was
subjected to unwelcome conduct related to her gender, including sexual
advances, requests for favors, or other verbal or physical conduct of a
sexual nature; (3) the harassment complained of was based on sex; (4)
the harassment had the purpose or effect of unreasonably interfering
with her work performance 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)). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. See Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, the Commission agrees with the agency that
complainant failed to establish a prima facie case of sexual harassment.
Specifically, the Commission finds that the preponderance of the evidence
does not establish that the conduct was unwelcome. In reaching this
conclusion, we note that a large number of complainant's co-workers
testified that complainant participated in, enjoyed and initiated
some of the sexual bantering in the workplace. There is no evidence
that complainant ever communicated to anyone, including S1 or S2, that
the conduct was unwelcome. We also note that complainant refused to
cooperate with the MCS when he initiated an investigation. As such,
we decline to find that complainant established a prima facie case of
hostile work environment sexual harassment.
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
March 4, 2004
__________________
Date