0120080151
12-10-2009
Myung Y. Ashley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Myung Y. Ashley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120080151
Hearing No. 451-2007-00122X
Agency No. 1G-782-0026-06
DECISION
On October 10, 2007, complainant filed an appeal from the agency's
September 5, 2007, 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order finding no discrimination.
ISSUES PRESENTED
Whether complainant was subjected to discrimination based on her race,
national origin, age, or sex.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a General Expediter at the agency's Midland, Texas Processing and
Distribution Center. The record reveals that, upon returning from a
vacation on October 1, 2006, complainant learned from a contract truck
driver that a co-worker had said to him, "[D]on't help [complainant] count
mail anymore because she will not give you any." Complainant immediately
reported this incident, and also reported an incident about overhearing
a conversation regarding a "Girls Gone Wild" video to management. 1
An investigation was immediately launched. After a pre-disciplinary
meeting, the co-worker was charged with "Misconduct-Engaging in Conduct
Characterized as Sexual Harassment by a Co-Worker." He was suspended
for seven calendar days.2 After the suspension, the coworker returned
to his bid position. Complainant was instructed to alert management if
any further incidents occurred. Complainant expressed disappointment
that the coworker was returning to his position.3
On December 11, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (Asian), national
origin (Korean), sex (female), and age (50) when she was subjected to
sexual harassment and/or a hostile work environment.
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. Prior to the hearing, the agency filed a motion for
findings of fact and conclusions of law without a hearing. Complainant
opposed this motion.
In an Order dated June 15, 2007, the AJ ruled on the motion finding that,
although complainant had established that she belonged to a statutorily
protected group and established that she had been subject to unwelcome
harassment based on her sex, with regard to her sexual harassment
claim she failed to demonstrate that the harassment was sufficiently
severe or pervasive so as to create a hostile work environment. The AJ
found that, notwithstanding complainant's claim to the contrary, the
evidence of sexual harassment included only the remarks, in effect,
that complainant would not have sex with others in return for their
helping her, and the commentary about the "Girls Gone Wild" video.
The AJ determined that these incidents were not severe or pervasive
enough to create a hostile or abusive work environment. The AJ further
found that the agency took steps to investigate complainant's claims as
soon as it was brought to management's attention. Finally, the AJ found
that the behavior was not sufficiently egregious to warrant placing the
coworker in a different building or on a different shift from complainant.
The AJ also found that complainant did not show that her employer knew
or should have known of the harassment before complainant reported it.
Therefore, the AJ held, complainant failed to establish a prima facie
case of sexual harassment and judgment was entered in favor of the agency
regarding complainant's sexual harassment claim.
Likewise, the AJ found that complainant had alleged no facts to
demonstrate that she was subjected to discrimination or harassment based
on her age. Therefore, judgment was entered in favor of the agency on
complainant's age discrimination claim. With respect to the remaining
issues, the AJ determined that issues of material fact existed as to
whether complainant was subjected to discrimination and/or a hostile
work environment based on her race, national origin, or sex, and so
those issues proceeded to a hearing.
A hearing was held on July 19, 2007, and a decision was issued on
August 27, 2007. During the hearing, the AJ took testimony regarding
complainant's claim that she was discriminated against based on her race,
national origin, and sex and was subjected to a hostile work environment.
Specifically, complainant alleged that she was denied overtime, that she
was yelled at with regard to clocking in early, that she found "Playboy"
and similar magazines in an envelope in the expediter's desk, and that she
was talked about in a sexual manner by coworkers. Complainant indicated
that she was afraid to come to work each day because she never knew
what was going to happen. The AJ found that complainant failed to
establish a prima facie case of discrimination because she failed to
demonstrate that other employees were treated more favorably. She also
did not establish that she was subjected to a hostile work environment
because the incidents cited were not sufficiently severe or pervasive.
Moreover, the AJ found that the agency had articulated legitimate
nondiscriminatory reasons for its actions. The agency had explained that
complainant was denied overtime because there was another employee who
performed the same duties that complainant did, so that employee could
take over where complainant left off without incurring overtime. The
agency further explained that complainant's supervisor spoke forcefully
to her when he learned that she had clocked in early because she had
previously been warned against unauthorized overtime, and he incorrectly
believed that she had clocked in without authorization. The agency noted
that, while complainant contended that she had been called disrespectful
names,4 these incidents took place years before the current incident, and
complainant's brother-in-law, who also worked at the facility, testified
that he never told complainant about the comments that he had overheard
which he believed were directed against her. Regarding the "Playboy"
type magazines, the AJ determined that the magazines that complainant
found could have been left by anyone at the facility, that there was
no evidence that the agency was aware of or condoned the presence of
this material in the workplace, and that the materials were removed as
soon as they were reported. Therefore, the AJ found that complainant
failed to prove her case. 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.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she was the only female out on
the dock and, as the only female she was subjected to ongoing sexual
harassment and a sexually hostile environment. Complainant asks that
the Commission read the hearing transcript as there were many sexual
comments that were made either to or about complainant. The agency asks
that complainant's appeal be denied as she has not provided any evidence
which indicates that the agency's reasons were pretext for discrimination
or harassment/hostile work environment.
ANALYSIS AND FINDINGS
First, we consider whether the AJ properly issued a decision without
a hearing in part, with regard to complainant's allegations of sexual
harassment and age discrimination. The Commission's regulations allow
an AJ to issue a decision without a hearing when s/he finds that there
are no genuine issues of material fact. 29 C.F.R. � 1614.109(g). This
regulation is patterned after the summary judgment procedure 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). The AJ may properly issue a
decision without a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).
We find that the AJ's determination to issue a decision without a hearing
(summary judgment) regarding the issues of age discrimination and sexual
harassment were appropriate.
The Commission agrees that complainant failed to establish that she was
subjected to sexual harassment. We find the record supports the AJ's
finding that the incident complained of when evaluated from the objective
viewpoint of a reasonable person in the victim's circumstances was not
severe or pervasive enough to establish sexual harassment. At most,
complainant is complaining of an isolated incident, i.e., that her
coworker said another coworker should stop helping her because he was not
"going to get any" and when on the same day, she overheard a conversation
about a video, which was stopped immediately when she complained about
the situation. The Commission has long held that a single incident
or group of isolated incidents will not be regarded as discriminatory
harassment unless the conduct is severe. Walker v. Ford Motor Co., 684
F.2d 1355, 1358 (11th Cir. 1982). Further, with respect to the incidents
alleged in this case, we find that complainant has not shown that 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.
Furthermore, we find that the agency took immediate action in response to
complainant's allegation. As such, we agree that there is no basis for
imputing liability to the agency. Further, the Commission finds that no
evidence has been presented which supports complainant's contention that
age was considered with regard to any of the actions in the instant case.
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 prevail in a disparate treatment claim such as this, 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 initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) he or she is a member of a
statutorily protected class; (2) he or she 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.
In order to establish a prima facie case of sexual harassment, a
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).
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we agree that
complainant has not demonstrated that she was discriminated against or
subjected to harassment or a hostile work environment. Specifically,
the Commissions finds that even if we assume, arguendo, that complainant
established a prima facie case of discrimination with regard to race,
sex, or national origin, we find the agency articulated legitimate
nondiscriminatory reasons for its actions as was discussed above.
Further, we find that complainant has not demonstrated that these
articulated reasons were pretext for discrimination.
With respect to complainant's claim of harassment or a hostile work
environment, we further find that the incidents complained of were not
sufficiently severe or pervasive to establish a hostile work environment.
We note the agency articulated legitimate reasons for speaking to
complainant regarding clocking-in early and explained why she was denied
overtime; and explained that the "Playboy" type magazines could have
belonged to anyone, there was no evidence that the agency was aware
of or condoned the presence of this material in the workplace, and the
materials were removed as soon as they were reported. Further, while the
offensive names that complainant maintains she was called in the past
have no place in the work environment, the incidents complained of are
too remote in time to establish a hostile work environment in this case.
CONCLUSION
Accordingly, the agency's final order affirming the AJ's finding of no
discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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
December 10, 2009
Date
1 This incident occurred on or about August 16, 2006. Complainant asked
one of the coworkers involved to not speak like that in front of her.
That coworker apologized and the incident was not repeated.
2 The coworker filed a grievance and the suspension was reduced to five
days.
3 At the hearing, complainant indicated that the coworker had made
inappropriate comments about her in the past but that these incidents
had occurred several years before the current incidents.
4 Complainant testified that anywhere from three to six years prior to
the instant case, her supervisor called her a "chink," "whore," "gook,"
and "cunt." She indicated that she did not know what these words meant
until she asked her husband.
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0120080151
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080151