0120093078
08-09-2011
Sylvia A. Dancy, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Sylvia A. Dancy,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120093078
Agency No. 1H-322-0036-08
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s June 12, 2009 final decision 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 Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. For the reasons which follow, the Commission
AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether the measures taken by the Agency following
Complainant’s report of discriminatory co-worker harassment were
sufficient to relieve the Agency of liability.
BACKGROUND
On July 28, 2008, Complainant filed a formal EEO complaint alleging
discrimination on the basis of race (African-American) and disability
(stress) when on March 16, 2008, she was called “fucking nigger” by
a coworker (CW), and management allegedly took no action. The complaint
was accepted for investigation. Complainant was provided with a copy
of the resulting report, ad was advised of her right to request either a
hearing before an EEOC Administrative Judge or an immediate final decision
from the Agency. Complainant requested an immediate final decision.
In its final decision, the Agency found that it took prompt remedial
action after receiving notification of CW’s remark. Specifically,
the Agency noted that after receiving notification of CW’s remark,
management immediately escorted CW out of the building, placed him
in an emergency placement in off-duty status, and promptly conducted
an investigation into the matter. Further, the Agency noted that
management issued CW a 14-day suspension without pay on April 3, 2008,
as punishment. The Agency also noted that on April 23, 2008, it conducted
diversity and sensitivity training that CW attended.
The instant appeal followed. Neither party filed a brief on appeal.
ANALYSIS AND FINDINGS
To establish a claim of harassment Complainant must show that: (1) she
is a member of the 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. U.S. Postal Serv.,
EEOC Appeal No. 01965238 (Oct. 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 a case of co-worker harassment, an agency is responsible for acts
of harassment in the workplace where the agency (or its agents) knew
or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action. See EEOC Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, No. 915.002 (June 18, 1999); 29 C.F.R. § 1604.11(d).
Although Complainant has clearly satisfied the four prongs noted
above,1 we find, however, that the Agency took immediate and appropriate
corrective action as soon as Complainant gave notice of CW’s remark. The
record shows that after Complainant reported the incident, management
immediately escorted CW out of the building; placed CW in an emergency
placement off-duty status; investigated the incident; issued CW a 14-day
suspension without pay on April 3, 2008; and provided CW with diversity
and sensitivity training. The record reflects that there has been no
recurrence of the alleged harassment, nor has Complainant been subjected
to any retaliation for reporting the incident. While we recognize that
the epithet used by CW was particularly foul, we nonetheless find that
the actions taken by the Agency are sufficient to relieve it of liability.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, and for the forgoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
affirm the Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 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 (S0610)
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 (Z0610)
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
August 9, 2011
Date
1 We note that prong 3 is satisfied with regard to race, based on the
nature of the epithet. However, there is no evidence from which to
conclude that CW was motivated by animus toward Complainant’s asserted
disability status.
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0120093078
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093078