01A22652
03-10-2003
Matthew R. Sieminski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Matthew R. Sieminski v. United States Postal Service
01A22652
03-10-03
.
Matthew R. Sieminski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22652
Agency No. 4C-150-0085-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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 employed
as a Letter Carrier at the agency's New Kensington, Pennsylvania facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on May 18, 2001, alleging that he was discriminated against
on the basis of sex (male) when a supervisor subjected him to a hostile
work environment.
The record reveals that complainant alleged that his supervisor routinely
hit him on the back with a letter tray, followed him to the bathroom,
followed him on his route and pinched him on the buttocks twice.
At the conclusion of the investigation, complainant was informed of
his 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 harassment. Specifically, the agency found that
complainant failed to demonstrate that he was subjected to unwelcome
harassment, the harassment complained of was based on his sex and the
harassment complained of affected a term or condition of employment,
and/or had the purpose of or effect of unreasonably interfering with his
work environment and/or creating an intimidating, hostile, or offensive
work environment. The FAD also found that the agency had proffered
legitimate, nondiscriminatory reasons for its action, namely: that the
supervisor admitted that he tapped all of his letter carriers on the leg
in the morning as a way of saying good morning; the supervisor denied
pinching complainant and no one ever witnessed the supervisor pinching
complainant; the supervisor denied following complainant into the men's
room and indicated that since there is only one rest room it is possible
that they were there at the same time; and the supervisor maintained
that he was frequently in complainant's work space area because he
had been told to do a daily mail count on another carrier whose mail
case is next to complainant's work area. The FAD also indicated that
the supervisor was also responsible for counting the parcels that were
next to complainant's work area so the supervisor was required to be
there for business reasons and not because of complainant. Further,
the FAD maintained that the supervisor did follow complainant around
on his route because he was conducting route inspections. The agency
maintained that the supervisor inspected sixteen other routes in addition
to complainant's. The FAD indicated that performing route inspections
was a function of the supervisor's job. Finally, the FAD found that
management took the appropriate steps to investigate the complaint,
including putting the supervisor on administrative leave until an
investigation was conducted. The FAD found that complainant failed
to establish that the agency's articulated reasons were pretext for
discriminatory animus toward complainant's sex.
On appeal, complainant contends that the supervisor continues to walk
within five feet of his backside. Complainant also maintains that one of
his witnesses has suffered retaliation from the supervisor since he helped
with complainant's case. The agency requests that we affirm its FAD.
To establish a prima facie case of sexual harassment a complainant must
show that:(1) he belongs to a statutorily protected class; (2) he was
subjected to unwelcome conduct related to his 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. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that complainant failed to establish
a prima facie case of sexual harassment based on the actions of the
supervisor. While the alleged conduct was unsavory and unprofessional,
we do not find that it rises to the level of unlawful harassment.
We find that complainant has failed to show that the agency's reasons
are pretext for discrimination. We find that the record shows that the
supervisor tapped the legs of all of his letter carriers with a tray
in the morning as a way of saying good morning. The record also shows
that the supervisor was conducting route inspections on many carriers
and not just the complainant. As such, we find that this behavior was
not specific to complainant and there is no evidence which indicates
that these activities were done based on complainant's sex. Lastly,
we find that incidents of alleged sexual harassment are unique in that
the case often comes down to issues of credibility. With respect to
complainant being pinched on the buttocks twice and being followed into
the men's room, we find that complainant has failed to show that the
alleged behavior was based on his sex or that it was severe or pervasive
enough to constitute a hostile work environment. We find the record
indicates that although no one actually observed complainant being
pinched on the buttocks, two witnesses testified that they noticed a
change in complainant's demeanor, and although he initially indicated
nothing was wrong, complainant later told them that the supervisor had
�goosed� him on two occasions. We note that the record indicates that
hijinx were prevalent in this office, in that, complainant was known for
pushing or shaking employees while they were using the urinal. Further,
we note that one of complainant's witnesses indicated that complainant
thought that the supervisor was always telling complainant what to do
and checking on complainant all of the time. This witness indicated that
now that the supervisor was back from administrative leave he had resumed
his practice of standing behind the witness and checking on his progress.
Therefore, we find that complainant has not shown that the supervisor's
actions were based on his sex. Finally, we find that the agency acted
promptly in responding to complainant's allegations.
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
_____03-10-03_____________
Date