0120062957
09-14-2007
Monieca Claiborne, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Monieca Claiborne,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200629571
Hearing No. 320-2005-00300X
Agency No. 1E-802-0030-04
DECISION
On March 31, 2006, complainant filed an appeal from the agency's March
20, 2006 final order concerning her equal employment opportunity (EEO)
complaint alleging 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. For the following reasons, the Commission AFFIRMS the
agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Handler at the agency's Bulk Mail Center facility in Denver,
Colorado. On September 21, 2004, complainant filed an EEO complaint
alleging that she was discriminated against on the bases of sex (female)
and in reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when:
1. From 2001 to June 8, 2004, an identified agency official (S1)
sexually harassed complainant;
2. On April 17, 2004, S1 did not rotate complainant in the unit;
3. On May 22, 2004, S1 denied complainant's bid for annual leave
for May 24, 2004 - May 30, 2004;
4. On June 2, 2004, complainant became aware that S1 charged her
with Leave Without Pay (LWOP); and
5. On June 18, 2004, S1 threatened complainant and other employees
when he made a "cut throat movement."2
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). Complainant timely
requested a hearing.
On November 30, 2005, the agency requested that the AJ issue a decision
without a hearing on the first four claims of complainant's complaint.
Complainant objected to the AJ's notice of his intent to issue a decision
without a hearing. On January 26, 2006, the AJ notified the parties that
he intended to decide claims (1) through (4) without a hearing and that
he would hold a hearing with respect to claim (5) alone. On February 7,
2006, a hearing on claim (5) took place and the AJ issued a decision on
complainant's complaint on March 8, 2006.
In his decision, the AJ found no material facts in dispute with respect
to claims (1) through (4) as he indicated earlier to the parties.
Specifically, the AJ found that complainant described a total of six
incidents of harassment. In the initial incident in 2001, complainant
alleged that S1 told complainant that he heard she was gay and asked
if he could have a threesome with complainant and her girlfriend.
Complainant told S1 that his conduct was not welcome and refused
the invitation. On another occasion, some three years later in 2004,
complainant alleged that S1 overheard complainant tell another employee
that she had no change. Complainant alleged that S1 told complainant that
he had change in his pocket and that complainant was welcome to search
in his pocket for change anytime. S1 denied making the statement.
With respect to claim (2), the AJ found that as soon as complainant
complained to S1 that she was not being rotated in the same manner that
male employees were rotated, S1 changed complainant's assignments to
include regular rotation.
With respect to claims (3) and, subsequently, claim (4), the AJ found
that neither party disputed the material facts. Complainant requested
a change in the dates of her annual leave (bid). S1 initially agreed,
but later, when complainant submitted her leave form and when she received
her leave and earnings statement, S1 charged her with leave without pay,
having forgotten that he agreed to the change in her bid annual leave
dates. As soon as complainant brought the mistake to S1's attention,
complainant's leave was changed to annual leave as it should have been
charged initially.
The AJ found that the incidents described by complainant did not affect
a term, condition or have the effect of unreasonably interfering with
complainant's employment such that it rose to the level of harassment.
Accordingly, the AJ found that complainant had not presented a prima
facie case of harassment based on sex.
Regarding claim (5), the AJ found that complainant's initial EEO activity
occurred on June 8, 2004, when complainant contacted an EEO Counselor
regarding S1's unwelcome sexual advances. This is the only incident
that occurred after complainant initiated the EEO process or otherwise
complained to the agency about S1's conduct. In claim (5), complainant
alleged that S1 indirectly threatened her when on June 17, 2004, S1 told
complainant's co-worker, E2, that the four complaining employees were
playing with S1's life and that S1 threatened to "[go] after jobs now,
I'm going after 'this'," and made a cutthroat gesture to E2. The AJ
found that the gesture and threat were not made to complainant herself,
but to her co-worker, E2, who related the conversation to complainant.
Significantly, after complainant complained to the Manager of Distribution
Operations, S1 was moved to a different tour. Complainant reported
no other problems with S1 and at no time did S1 ever touch complainant.
The AJ found insufficient evidence that S1 knew about complainant's EEO
activity at the time he spoke with E2 and made the gesture. According,
the AJ found that complainant did not establish the necessary nexus
between her EEO activity and S1's action to form a prima facie case of
reprisal discrimination.3
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
ANALYSIS AND FINDINGS
Regarding claims (1) - (4), the Commission's regulations allow an AJ to
issue a decision without a hearing when he or she finds that there is no
genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure set forth in Rule 56
of the Federal Rules of Civil Procedure. The U.S. Supreme Court has
held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court's function is not to weigh the evidence but rather
to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. An issue of fact is "genuine"
if the evidence is such that a reasonable fact finder could find in favor
of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact
is "material" if it has the potential to affect the outcome of the case.
Regarding claim (5), 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).
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he 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 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she 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).
With respect to claims (1) through (4), we find the AJ properly issued
his decision without the need for a hearing. Specifically, drawing
every inference in complainant's favor, that is, that S1 said and
acted as complainant alleged he did, the incidents of which complainant
complained were not sufficiently severe or pervasive to state a claim of
harassment based on sex. The event of 2001, and the incidents in 2004,
was not so severe or pervasive as to alter the terms and conditions of
complainant's employment. Moreover the threat and threatening gesture
(claim (5)) S1 allegedly made to complainant's co-worker was not made in
complainant's presence. Significantly, as soon as complainant complained
about S1's actions, the agency implemented steps to separate complainant
from S1 and to correct S1's behavior. Substantial evidence in the
record supports a finding of no discrimination for claim (5).
After careful consideration of the entire record together with the
arguments on appeal, we find no reason to disturb the AJ's decision.
Accordingly, we AFFIRM the agency's final decision, finding no
discrimination.
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 14, 2007
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above referenced appeal number.
2 The agency official identified herein as S1 became complainant's
immediate supervisor in late 2003.
3 On appeal, complainant argues that the AJ dismissed four of her
claims for untimely EEO contact. In fact, the AJ did not dismiss any of
complainant's claims as framed in his decision. The AJ decided claims
(1) through (4) without a hearing, finding no discrimination.
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0120062957
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062957