01973016
12-17-1999
Renee Staley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Renee Staley, )
Complainant, )
)
v. )
) Appeal No. 01973016
William J. Henderson, )
Postmaster General, ) Agency No. 4-D-270-1164-95
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision
(�FAD�) concerning her equal employment opportunity (�EEO�) complaint
of unlawful employment discrimination on the basis of sex (female)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant claims she was discriminated
against when from April 1994 to May 1995, she was harassed by her
supervisor (�SV�). This appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED as CLARIFIED.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Transitional Clerk, at the agency's Durham, North Carolina
post office. Complainant claimed that during the relevant period,
she experienced the following:
(1) SV repeatedly asked her for her home telephone number, but she
refused;
(2) SV would constantly question her when she left her work area;
(3) SV would stare at her in an intimidating manner;
(4) SV asked her to move her car from the back dock;
(5) SV sent her home for insubordination;
(6) management began to treat her differently after she took sick leave
one night when she was unable to find her supervisor;
(7) SV attempted to send her home for a dress code violation; and
(8) SV influenced the Customer Service Supervisor (�CSV�) into terminating
her.
SV responded to the incidents by stating: (1) he asked for complainant's
home telephone number because on an occasion when he needed to telephone
all the temporary employees, he learned that complainant's personnel file
contained the incorrect telephone number; (2) he questioned all of the
employees when they were away from the work area for an extended period;
(3) he never stared at or tried to intimidate complainant; (4) he asked
complainant to move her car because it was blocking truck access to the
dock; (5) he sent complainant home because after learning that she was
putting her work on a coworker's ledge, she refused to collect the work
as he directed; (6) complainant was within her rights when she took
sick leave after she was unable to find a supervisor; (7) he informed
complainant of the dress code violation but did not send her home because
other employees, not under his supervision, were also in violation of
the dress code; and (8) he had no part in the decision to terminate
complainant. Complainant's transitional appointment expired on May
20, 1995. The agency decided not to reappoint her to a new appointment.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on August 29, 1995. The
agency accepted the complaint for processing, and at the conclusion
of the investigation, complainant was granted thirty days to request
a hearing before an Equal Employment Opportunity Commission (�EEOC�)
Administrative Judge. Complainant failed to request a hearing within the
thirty-day time period. Thereafter, the agency issued a final decision.
Initially, the FAD divided complainant's claim into two issues. The first
issue was framed as whether incidents (1) through (7) constituted
sexual harassment. The second was framed as whether complainant was
sexually harassed when she was terminated on May 20, 1995. As for the
issue regarding incidents (1) through (7), the FAD held that complainant
failed to state a claim because she did not show that she was harmed by
any of the alleged actions. The FAD also held that because complainant
did not contact an EEO counselor until ninety-two (92) days after the
alleged harassment, complainant was outside the forty-five (45) day time
limit for initiating counselor contact. Regarding the termination,
the FAD concluded that complainant failed to establish a prima facie
case because she did not demonstrate that she was subjected to unwelcome
harassment based on her sex.
On appeal, complainant makes no new contentions and the agency requests
that we affirm the FAD.
ANALYSIS
Upon examining complainant's complaint and the EEO Counselor report, it
appears that complainant's claim is that she was continuously harassed
by SV in a manner that interfered with her ability to perform her job
functions and led to her eventual termination. When confronted with
claims such as this, which involve ongoing conduct, the agency cannot
ignore the pattern aspect and define the issues in a piecemeal manner,
as it appears to have done here. See Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999). We find that the agency
improperly fragmented this case into two separate issues. The properly
framed issue in this case is whether complainant was discriminated
against because of sex when she was harassed by SV.<2>
Since the properly framed issue includes complainant's termination,
we find that the agency's contention that, she failed to state a claim
because there was no harm, is no longer valid. As for the agency's
timeliness contention, we find that while some of the incidents are beyond
45 days of complainant's initial EEO Counselor contact and others are
without event dates, at least three are within 45 days of complainant's
initial EEO contact of May 22, 1995. These are the insubordination charge,
dress code violation, and termination. In accordance with our decision
in Reid, even though some of the claims fall outside of the 45-day EEO
Counselor Contact period, their connection to the timely claims renders
them part of a continuing violation. See Reid, supra.
Normally, once we vacate an agency's procedural dismissal, the case
is remanded for further processing. Here however, since the agency
completely investigated all of the incidents, even those found untimely,
and because complainant did not request a hearing before an Administrative
Judge, we find that to avoid further delay in this case, the merits of
complainant's harassment claim can be resolved by this appeal.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14,
1998)(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
In determining that a working environment is hostile, factors to
consider are the frequency of the alleged discriminatory conduct, its
severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee's work performance. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002
(March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 3, 6. The Supreme Court stated: "Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a prima facie case of hostile environment harassment, a
complainant must show that: (1) she belongs to a statutorily protected
class; (2) 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, Appeal No. 01965238 (October
16, 1998); 29 C.F.R. � 1604.11. Evidence of the general work atmosphere,
involving employees other than the complainant, also is relevant to the
issue of whether a hostile environment existed in violation of Title VII.
Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant
part and rev'd in part, Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986).
After a careful review of the record, the Commission finds that
complainant failed to present sufficient credible evidence establishing
that she was subjected to sex-based harassment. In reviewing the
incidents in question, we find that there is no persuasive evidence
that the incidents, taken individually or as a group, were sufficiently
severe or pervasive to constitute a hostile environment. We further
find that SV provided credible and rationale explanations for each
situation, and that the alleged incidents were not of the nature that
a reasonable person would find them offensive or hostile. Finally,
we find that the evidence does not support complainant's contention
that her termination resulted because of discriminatory harassment.
The record reveals that CSV informed the facility's supervisors that only
one of two Transitional Clerks at the end of their appointments would
be reappointed. The evidence shows that the facility's supervisors,
including SV, unanimously voted to terminate complainant because of
her past poor performance. In view of these considerations, we find
that complainant has failed to demonstrate that the events complained
of constitute harassment based on sex.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
FAD as clarified.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
December 17, 1999
DATE Carlton M. Hadden, Acting Director
1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint
process went into effect. These regulations
apply to all Federal sector EEO complaints
pending at any stage in the administrative
process. Consequently, the Commission will
apply the revised regulations found at 64
Fed. Reg. 37,644 (1999), where applicable, in
deciding the present appeal. The regulations,
as amended, may also be found at the Commission's
website at WWW.EEOC.GOV.
2 While complainant alleges sexual harassment in her complaint, we find
that since none of the alleged incidents are sexual in nature, the claim
is more appropriately framed as harassment based on sex.