Nancy Arnold, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionOct 9, 2003
01A24022_r (E.E.O.C. Oct. 9, 2003)

01A24022_r

10-09-2003

Nancy Arnold, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Nancy Arnold v. United States Postal Service

01A24022

October 9, 2003

.

Nancy Arnold,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 01A24022

Agency No. 4G-780-0059-01

Hearing No. 360-A1-8330X

DECISION

Complainant timely initiated an appeal from a final order concerning her

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, we AFFIRM the agency's final order, finding

no discrimination.

In her formal complaint, complainant alleged that the agency subjected

her to hostile work environment based on sex (female) when from August

1996 until October 2000, the agency allowed an inappropriate, sexually

permissive work environment to flourish at the Marble Falls, Texas

Post Office. Examples of the harassment included employees engaging

in displays of physical intimacy, and the male postmaster touching

and kissing complainant, telling inappropriate jokes, and engaging in

sexually suggestive conversation. At the conclusion of the investigation,

complainant requested a hearing before an EEOC Administrative Judge

(AJ), and a hearing was held on May 8, 2002.

In his decision, the AJ found the atmosphere at the Marble Falls,

Texas Post Office a "little bit disturbing." The AJ concluded that

"everybody hugged everybody every morning" and this was a situation

"that not only was allowed to exist, but frankly, was encouraged by

the postmaster." The AJ further concluded that "there was kissing, but

not of a sexual nature, friendly-type kisses." The AJ also concluded

that the supervisor "had a propensity for telling off-color jokes." The

AJ determined that two employees engaged in a flagrant affair "behind

closed doors in the postmaster's office" when the postmaster was out

of the office. "Management should have stepped in and put a stop to

that immediately," the AJ said of the apparent affair. Nevertheless,

the AJ determined that he found no evidence that complainant's normal

work environment was disrupted by these activities. The AJ noted that

complainant failed to present any corroborating witnesses and did bring

the harassment to the attention of anyone until she contacted the EEO

office which she did only after she was disciplined for a non-related

incident. Finally, the AJ concluded that the evidence in this matter is

"largely a he said/she said, and I simply am not in a position to sustain

the allegations of hostile work environment...."

On appeal, complainant argues that the AJ erred in finding no hostile work

environment. Complainant noted that her testimony provided ample evidence

that she told the postmaster that his conduct was unwelcome and offensive.

Complainant further notes that the postmaster admitted in his testimony

that he hugged complainant, although he claimed it was not romantic.

In response, the agency argues that the AJ properly found there was no

hostile work environment. The agency contends that while the evidence

suggests that a situation existed in the post office where "everybody

hugged everyone, and even kissed," this "was apparently non-sexual."

The agency further contended that although the AJ stated that there

was evidence that the postmaster had a propensity to tell off-color

jokes, the AJ correctly found that he could not conclude that these

jokes were offensive because he was not told the substance of any of

the jokes. The agency further contends that complainant's testimony

was mere hearsay because complainant failed to present any witnesses to

corroborate her claim that many other employees were also unhappy with

the work environment. Finally, the agency noted that there was testimony

that complainant initiated personal contact with the alleged harasser,

including sending him a birthday card and going to his home.

The record reveals that the accused postmaster came to complainant's

workplace in 1996 and left in March 2000. During the hearing,

complainant testified that the postmaster often hugged her and told

dirty jokes. She stated that the postmaster kissed her once while

she working and would walk behind her and say that she was sexually

arousing him. Complainant relayed another instance where the postmaster

allegedly came to the work place in "tight pants" and "shook his butt

at my face." Complainant stated that "he would always look around to

see if anyone was in earshot or if they could see him, and he would do

these things." Complainant contended that she told him, "you'd better

stop it" constantly. Complainant further contended that the postmaster

came into the office wearing a tank top and jogging pants and stated

that he was not wearing undergarments. Responding to a question about

why she did not file an EEO claim immediately, complainant stated that

everybody told her that if she filed anything against the postmaster,

she would be terminated because he was such a high-ranking official.

Complainant acknowledged that she did go to the postmaster's house when he

requested her and other employees' presence because he was having severe

panic attacks. Complainant relayed that during these panic attacks,

agency employees would visit and pray for the postmaster.

During the hearing, the postmaster testified that sometimes he would

hug complainant and other employees in a non-romantic way. He stated

that he would give both male and female employees platonic hugs.

The postmaster also testified that complainant and other employees would

come to his home when he was having panic attacks. The postmaster stated

"we all had nicknames at the post office." He stated that complainant's

nicknames were "Nanny" and "Boo-boo Bear." The postmaster testified that

off-color jokes were common in the office, but complainant's jokes were

not off-color in nature. The postmaster further stated that he would

come into the office on his day off in workout apparel and admitted that

he once jokingly stated that he was not wearing underwear in response

to an employee's question. The postmaster stated that complainant was

probably in the vicinity when he made those comments. The postmaster

stated that complainant sent him a birthday card in July 2000.

A co-worker (C1) testified that she witnessed the postmaster tell

off-color jokes and hug and kiss employees in a non-romantic way.

Another co-worker (C2) testified that two employees would go into

the postmaster's office and close the door for hours, three or four

times a week. He stated that he never saw the employees engage in any

physical activity. He further testified that the postmaster would hug

him on a routine basis and tell him he loves him every day, which he

did not find offensive.

A third co-worker (C3) testified that the postmaster did not always

conduct himself properly and told off-color jokes on a daily basis.

She stated that she was offended by the jokes, but "just walked off"

in response. She contended that the postmaster once reached out and

grabbed her leg at work, causing her to sternly warn him "do not ever

touch me again."

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.

To establish a prima facie case of hostile work environment, complainant

must show that: (1) she belongs to a statutorily protected class; (2)

she was subjected to unwelcome conduct related to her 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).

In this matter, complainant does not allege that the alleged harassment

resulted in a tangible employment action, instead she alleges a hostile

work environment. Complainant established that she is a member

of a statutorily protected class. Regarding the second element of

complainant's prima facie burden, the record further reflects that the

postmaster often made "off-color" comments and jokes in the presence of

complainant and other employees, including a suggestive comment about

his workout attire. There was also substantial evidence in the record

to support a finding that two co-workers were having a romantic affair.

However, multiple co-workers and the postmaster testified that while their

behavior in the workplace was suspiciously cozy, they did not openly

engage in sexual conduct in the workplace. Moreover, complainant did

not allege that any preferential treatment resulted from the apparent

consensual romantic relationship.

Complainant alleges that the postmaster hugged her in an offensive

manner. The postmaster testified that he often hugged complainant

and co-workers in a non-romantic way, but never hugged complainant in

a sexually suggestive manner. Co-workers testified that physical,

non-sexual affection was commonplace in the office, and stated that

complainant and the supervisor sometimes hugged in a non-romantic way.

Further, male as well as female co-workers stated that they often

expressed platonic physical and verbal affection toward the postmaster.

We note that none of the co-workers that testified recalled complainant

making any type of objection about the postmaster's behavior before

initiating the instant EEO complaint. Instead, co-workers testified

that complainant often partook in copious joking with the supervisor

and other employees. We also note that the evidence establishes that

well after the alleged harassing events began, complainant visited the

postmaster's home and sent him a personal birthday greeting. As such,

we find that there is a paucity of evidence in the record establishing

that complainant communicated any displeasure or even discomfort with

the postmaster and co-workers' conduct before initiating EEO counseling.

We note that complainant asserted that she expressed her disgust with

the jokes, romantic affair, and hugging to other employees, but these

witnesses did not testify on complainant's behalf and therefore cannot

be considered as corroborating evidence that complainant or others found

the alleged conduct unwelcome. Consequently, we find that complainant

failed to prove by a preponderance of the evidence that the postmaster's

conduct was unwelcome.<1>

We further note that complainant alleged that the postmaster kissed

her once, grabbed his genitals while she was present, walked behind

her and said that she was sexually arousing him, and shook his buttocks

in her face. The postmaster denied each claim, and no other employee

testifying corroborated these claims. The AJ found these particular

claims that the postmaster initiated unwelcome physical contact with

complainant were not credible and not supported by substantial evidence.

We discern no basis to disturb the AJ's decision. While the Commission

does not condone the unprofessional environment that existed at the

Marble Falls, Texas Post Office, we find that, under the facts of this

case, complainant did not meet her burden to prove, by a preponderance

of the evidence, a violation of Title VII. 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 agency's final order.

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

_October 9, 2003_________________

Date

1We note that although complainant's participation in jocular conversation

with the postmaster does not necessarily negate a claim that she

was subjected to conduct that was unwelcome, here, the accumulation

of evidence that complainant did not express objections about the

postmaster's conduct to co-workers, visited the postmasters home,

sent him a personal birthday greeting during the relevant time period,

and did not raise the matter until after she was disciplined for a

subsequent action, persuades us that complainant was not offended by

the postmaster's conduct.