0120083566
11-13-2008
Marsha L. Pate-Rollins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marsha L. Pate-Rollins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083566
Agency No. 4J-604-0031-08
DECISION
On August 14, 2008, complainant filed an appeal from the agency's July
14, 2008 final decision concerning her equal employment opportunity (EEO)
complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
During the period at issue, complainant worked as a Carrier Technician at
the Homewood Post Office Tri-City Carrier Annex in Glenwood, Illinois.
On February 26, 2008, complainant filed an EEO complaint. Therein,
complainant claimed that she was discriminated against on the bases of sex
(female) and disability (migraine headaches)1 when, on unspecified dates
she was sexually harassed by her supervisor (S1); subjected to ongoing
harassment when she rejected the advances; and subsequently removed from
the agency on December 13, 2007.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that
she was subjected to discrimination as alleged.
The FAD found as follows: complainant failed to establish that she was
an individual with a disability as defined by the Rehabilitation Act.
Further, complainant did not establish a prima facie case of sex or
disability discrimination because she did not show that she was treated
less favorably than similarly situated individuals outside her protected
groups. Complainant also failed to establish her sexual harassment claim.
In particular, complainant did not raise sufficient evidence in the record
to show that the incidents cited occurred and, if so, that they were
sufficiently severe or pervasive to create a hostile work environment.
Additionally, complainant admitted that she failed to report any of the
incidents until after she was issued the Notice of Removal.
The FAD next found as follows: there is no cause to impute liability upon
the agency as the record indicates that management took prompt action
once it was notified about the alleged harassment. Specifically,
the Postmaster and the Union Vice-President conducted investigations
regarding complainant's contentions of sexual harassment, but were unable
to substantiate the charges. In addition, management has articulated
legitimate, non-discriminatory explanations for their actions.
Complainant was issued a Notice of Removal on October 15, 2007, for
violation of a Last Chance Settlement Agreement because she failed to
follow instructions. The Agreement stated that, during a two year period,
any violation would be grounds for removal. Complainant violated the
provisions of the Agreement on September 29, 2007, when she failed to
follow the instructions of her manager. The FAD found no evidence of
pretext, and concluded by finding no discrimination in this case.
On appeal, complainant states that she has been the victim of "hideous
behavior" at the workplace. Complainant argues that S1 called her
more times than he admits, and implies that such calls were made for
inappropriate reasons. Complainant further asserts that "The only
reason why the issue was pursued to terminate me from my employment was
supervisor [S1's] decision in retaliation because I became ill and had
to leave work after the incident between him and I on Sept. 29, 2007."
In reply, the agency urges the Commission to affirm its final agency
decision.
As this is an appeal from a decision 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
In order to establish a prima facie case of sexual harassment, the
complainant must prove, by a preponderance of the evidence, the existence
of five elements: (1) that she is a member of a statutorily protected
class; (2) that she was subjected to unwelcome conduct related to her sex;
(3) that the harassment complained of was based on her sex; (4) that
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) that there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,
903 (11th Cir. 1982). 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).
Complainant maintains that in September 2007, S1 visited an ill employee
(E1) at her home. She asserts that S1 then called her and stated that
E1, whom S1 allegedly called "Peanut Butter", answered her door in "daisy
dukes and a tight fitting top." Complainant also asserts that S1 called
complainant by the nickname of "Beautiful." Complainant contends that she
once advised S1 that her chest hurt and S1 replied "let me squeeze it out
of you." She also states that S1 told her that he did not like to kiss
women who smoked. She also states that S1 continually asked her out to
lunch. She also contends that after she rejected his sexual harassment,
S1 would not provide her with help on her routes. Complainant states
that on September 29, 2007, she left her case to talk to another worker
about switching routes. She states that there were other males outside
their cases on that date but they were not disciplined or harassed.
Complainant contends that her removal was based on her rejection of
S1's advance. Complainant admits that she did not report any of the
incidents because she feared she would lose her job because she was on
a Last Chance Settlement Agreement (due to prior attendance problems)
As a preliminary matter, we note that this record contains disputes as to
what exactly transpired with regard to the incidents which complainant has
described.2 For instance, although S1 admits that he called complainant
"several times." he contends that the calls were work-related. S1 also
denies making the other alleged statements (such as calling complainant
"Beautiful"). A witness (another Carrier) asserts however, that she heard
S1 calling complainant "Beautiful." As to complainant's allegation that
S1 would not provide her with street help, S1 states that complainant
had failed to complete a PS Form 3996 [Cartier Auxiliary Control],
notifying management that she required assistance, in a timely manner.
For the sake of this decision, we will assume that S1 did call complainant
"Beautiful" more than once, and that he did subject complainant
to the other alleged conduct. Nevertheless, this record does not
clearly indicate whether complainant communicated, either explicitly or
implicitly, that such conduct was unwelcome. Important to establishing
unlawful sexual harassment is a showing that the conduct complained of was
unwelcome to complainant. Bobbett v. Department of Justice, EEOC Appeal
No. 07A00013 (December 13, 2002); see also Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982).3 Assuming S1 did ask her to lunch more than
once, and assuming complainant "rejected" these invitation, complainant
does not assert (and the record fails to indicate) that she made it clear
to S1 that his requests were unwelcome or offensive to her. Although an
employee's consistent failure to respond to her manager's requests to have
lunch could be sufficient to communicate that the manager's conduct is
unwelcome, in this case, complainant has not provided specific information
concerning exactly when, or how often, S1 asked her to lunch.
Assuming complainant communicated that the conduct was unwelcome, and
assuming that it was also severe and/or pervasive enough to be considered
unlawful, this record does not indicate that the termination action was
in any way related to the prior harassment. The agency has articulated
legitimate, nondiscriminatory reasons for the termination (failure to
follow instructions), which complainant has not proven to be pretextual.
To avoid liability for harassment by a supervisor that did not result
in a tangible employment action, the agency can make out an affirmative
defense by demonstrating: (a) that it exercised reasonable care to
prevent and correct promptly any sexually harassing behavior; and (b)
that complainant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. See Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999)
("Vicarious Liability Guidance"), at 12 (citing Burlington Industries,
Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998), and Faragher
v. City of Boca Raton, 524 VS. 775, 118 S.Ct. 2275 (1998)).
Complainant stated in her investigative affidavit "No, I did not inform
anybody in management about the harassment because I feared of [losing]
my job because of the status of the last chance agreement I was on."
Although complainant was apparently worried about her job status,
the record is devoid of evidence that S1 caused complainant to feel
that she could lose her job if she rejected his advances. Accordingly,
based on this record, we conclude that complainant's failure to report
the harassment was unreasonable. Additionally, once the agency became
aware of the harassment, the agency took prompt and immediate action
to investigate the situation. Accordingly, the agency can establish
an affirmative defense in accordance with Faragher v. Boca Raton, 524
U.S. 775 (1998).
Although some of the alleged incidents of harassment are inappropriate
for a workplace environment, we agree with the FAD's conclusion that
complainant did not show that unlawful discrimination occurred in this
case. Based on a thorough review of the record and the contentions on
appeal, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
November 13, 2008
__________________
Date
1 For purposes of this decision, the Commission assumes arguendo that
complainant is disabled pursuant to the Rehabilitation Act.
2 We do not have the benefit of an AJ's findings after a hearing, as
complainant chose a FAD instead, and therefore, we can only evaluate
the facts based on the weight of the evidence presented to us.
3 Evidence of unwelcome conduct may include whether complainant made a
contemporaneous complaint or form of protest, particularly when some
prior consensual interaction would have led the alleged harasser to
believe that the conduct was not unwelcome. EEOC Policy Guidance on
Current Issues of Sexual Harassment (March 19, 1990), at 7.
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0120083566
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083566