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.