0120063398
09-26-2007
Kim T. Pham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kim T. Pham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200633981
Hearing No. 320-2005-00249X
Agency No. 1E-801-0102-04
DECISION
Complainant filed an appeal with this Commission from the April 25,
2006 agency decision which implemented the April 18, 2006 decision of
an EEOC Administrative Judge (AJ) finding no discrimination.
Complainant alleged that the agency discriminated against her on the
bases of race (Asian/Vietnamese), sex (female), and in reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
when:
1. On August 23, 2004, the agency placed complainant on emergency
placement-off duty status without pay for threatening a supervisor.
2. On August 23, 2004 and prior, complainant was sexually harassed
by her supervisor (S-1).
3. From September 22, 2004 and continuing, complainant was harassed
and retaliated against by S-2,2 a 204-B Supervisor at the Denver GMF,
when: (a) on September 22, 2004, S-2 dispersed friends who welcomed
complainant back; (b) on September 27, 2004, S-2 pushed a cart of mail
at complainant; (c) on September 30, 2004, S-2 and fellow-coworkers
circulated a petition impugning complainant's character; (d) on October 5,
2004, S-2 paged complainant knowing that she had entered the bathroom;
and (e) on an unspecified date, S-2 continued to watch complainant and
stare at her on a daily basis.
At the conclusion of the investigation, complainant requested a hearing.
A three-day hearing was held before the AJ.
Regarding claim 1, the AJ found that the Supervisor of Distribution
Operations (SDO) had performance related issues with complainant regarding
her not keeping the machine full of mail, being away from her machine,
and talking to other employees. The AJ also found that the SDO had spoken
to complainant previously about these work issues and the expectations
that he had for employees whom he supervised. The AJ found also that on
August 23, 2004, instead of keeping the "ledge" loaded and continuously
feeding it, complainant let the mail run out, and had to stop the ledge
and reload it. The AJ found further that the SDO had the Manager of
Distribution Operations (MDO), a trainer (E-1), and S-1 (the new 204-B
supervisor) accompany him when he spoke to complainant. The AJ also found
that the SDO told complainant that the ledge needed to be fed continuously
and to follow certification procedures but that complainant told the SDO
that she was not going to feed the machine continuously because it was
a safety issue and did not explain why. The AJ further found that the
SDO told complainant if she did not follow his order, that he might take
disciplinary action and that he also offered complainant training which
she declined. The AJ also noted that S-1 testified that shortly after
the MDO met with complainant, complainant approached S-1 saying "fuck,
fuck, fuck" and when S-1 asked her what she was saying she told him
in effect "you supervisor wanna fuck around, then I'll put a bullet in
your head." The AJ noted that the MDO was notified and complainant was
placed on emergency placement-off duty status without pay based on the
written statement of S-1 because of the agency's Zero Tolerance Policy.
The AJ noted that complainant denied making any threats.
Regarding claim 2, the AJ noted that complainant stated that prior
to the beginning of her shift at 2:35 p.m. on August 23, 2004, S-1
allegedly put his hand between her buttocks, somewhere between her anus
and her vagina, and she told him to stop or that she would report him.
The AJ found that complainant did not report the alleged incident until
September 10, 2004, when she met with the Postal Inspector who was called
by management to conduct the investigation into the alleged threat she
had made on August 23, 2004, to S-1. The AJ noted that complainant
also reported to the Postal Inspector that S-1 had previously touched
her shoulder and hands. The AJ noted further that the Postal Inspector
referred complainant's allegation of sexual harassment to management.
The AJ noted that thereafter complainant provided a statement indicating
that S-1 had sexually harassed her since she knew him in the 1990s.
The AJ found that management removed S-1 from the facility on September
22, 2004. The AJ noted the testimony of a Vietnamese/Asian friend
(W-1) of complainant who testified that on many occasions, S-1 touched
complainant and made inappropriate remarks.
Regarding claim 3a, the disbursement of her friends, the AJ noted that
complainant and other employees were on the clock and S-2 told them
to return to their work areas. Regarding the posting of her picture
at the entrance of the facility and other areas alerting employees to
report to management if complainant were seen entering the building,
the AJ found that complainant's picture was only located where it could
be seen by the guards allowing entrance into the facility.3
Regarding claim 3b, the AJ noted that S-2 denied pushing the mail cart at
complainant and that he also stated that he did not perform craft work.
The AJ also noted that complainant was not injured. The AJ also noted
that W-1, complainant's friend, stated that she had seen the incident
but she could not tell whether it was an accident or intentional.
Regarding claim 3c, the AJ noted that 23 of complainant's co-workers
circulated a petition, dated September 28, 2004, requesting that
complainant be removed from the department. The AJ also found that the
contents of the petition revealed that the co-workers did not want to
work with complainant because she was a poor worker who did not do her
work; that she had threatened her supervisor with physical harm which
had a chilling effect on co-workers; that she filed a dubious sexual
harassment charge against her supervisor (and therefore) male co-workers
were concerned about working with her; and that the Zero Tolerance
Policy was ineffective and complainant's allegations and threats created
a hostile work environment. The AJ found that S-2 had nothing to do
with the petition which was circulated by Employee A and Employee B.
The AJ found that after receiving the petition, management disregarded
it and took no action. The AJ noted that S-2 stated that he had no
knowledge of the petition.
Regarding claim 3d, the AJ noted that S-2 testified that on October 5,
2004, he did not see complainant at her assigned work area and that is
why he paged her and, also, that because he had 25 employees to supervise,
he could not keep track of who was going to the restroom.
Regarding claim 3e, the AJ noted that S-2 stated that it was his job
as a supervisor to observe the work performance of employees whom he
supervised.
The AJ concluded that complainant failed to establish a prima facie case
of a hostile work environment. In so concluding, the AJ found that the
conduct of which complainant complained was neither sufficiently severe
nor pervasive so as to alter the conditions of her employment or create
an abusive working environment. Regarding the alleged sexual harassment,
the AJ found that the agency did not know of the alleged sexual harassment
until September 10, 2004, when complainant first complained to the Postal
Inspector. The AJ further found that even with the exercise of reasonable
care the agency would not have known of the alleged sexual harassment.
The AJ noted that the testimony regarding the alleged sexual harassment
was conflicting and that complainant knew that if there was behavior
that was unwelcome, she should have reported it to management, noting
that she had done so previously.
To establish a prima facie claim of harassment based on race, sex,
national origin, disability, age, or reprisal, complainant must show
that: (1) complainant is a member of the statutorily protected class;
(2) complainant 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. 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).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (December 6, 1996. Specifically, a complainant
may establish a prima facie case of reprisal by showing that: (1)
complainant engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must generally
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). The prima facie inquiry under McDonnell Douglas
may be dispensed with when the agency has articulated legitimate,
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981).
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Upon review, the Commission finds that the AJ's decision is based
upon substantial evidence in the record. Complainant has not shown
by a preponderance of the evidence that the conduct in claims 1 and 3
was based on complainant's membership in protected groups. Similarly,
complainant has not shown by a preponderance of the evidence that she
was subjected to a hostile work environment, that she was subjected to
the sexual touching that she alleged occurred in claim 2, or that the
agency's actions were retaliatory. Further, the record establishes that
the agency articulated legitimate, nondiscriminatory reasons for the
alleged discriminatory actions in claims 1 and 3. Regarding claim 2, we
note that once management became aware of the alleged sexual harassment
it moved the alleged harasser to a different facility. Furthermore,
we note that the alleged shoulder/arm touching incidents in 1990s were
never brought to management's attention until 2004. Regarding the
petition circulated by complainant's co-workers, the record does not
demonstrate that management initiated the petition or was in any way
involved with its circulation.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
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
September 26, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
2 S-1 and S-2 are brothers.
3 Although this incident was not included in the definition of the
complaint, this appears from the record to have been considered by the
parties and the AJ to be part of claim 3a.
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0120063398
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036