0120081769
08-21-2008
Victoria Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Victoria Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081769
Hearing No. 440-2007-00259X
Agency No. 4-J-606-0135-06
DECISION
On March 3, 2008, complainant filed an appeal from the agency's 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. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
At the time of the events at issue, complainant was employed by the
agency as a Clerk at the Lakeview Station, Chicago Illinois. On July 5,
2006, complainant sought EEO counseling alleging that she was subjected
to discrimination on the bases of sex (female) and reprisal for prior
protected EEO activity. Informal efforts to resolve complainant's
concerns were unsuccessful. On November 7, 2006, complainant filed a
formal complaint alleging that she was subjected to multiple incidents
of sexual harassment by an acting supervisor (Acting Supervisor) from
May through July 2006.
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.
The agency filed a motion for a decision without a hearing on November
29, 2007. In her response, complainant did not contest the material
facts specified by the agency in its motion, but stated that "there
is no requirement that an opposition to a summary judgment be filed."
On January 17, 2008, the AJ issued a decision without a hearing finding
no discrimination. The agency's final order dated January 23, 2008,
implemented the AJ's decision.
The AJ found that complainant failed to establish a prima facie case
of sexual or retaliatory harassment. The AJ determined that management
conducted an investigation into complainant's sexual harassment charges
and took appropriate action. The AJ found that after an agency
official was informed of complainant's sexual harassment charges,
management immediately interviewed the clerks of the station and the
parties involved. Although the investigation revealed no evidence of
sexual harassment, the Acting Supervisor was transferred to a different
facility separated from complainant to resolve the conflict. In addition,
the AJ found that complainant did not allege any further harassment
after she reported the sexual harassment to management on July 3, 2006.
Regarding her claim of retaliation, the AJ determined that complainant
did not establish that her Acting Supervisor was aware of her protected
EEO activity, and therefore, she did not establish a prima facie case
of reprisal.
Complainant makes no contentions on appeal. The agency requests that
we affirm its final order.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth 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). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
Upon review of the record, we find that the AJ properly issued a
summary judgment. A review of the record reveals that no genuine issue
of material facts exists. Further, complainant was given ample notice
by the AJ of the proposal to issue a summary judgment, a statement of
the material facts, and the opportunity to respond. Complainant did
not dispute the material facts; therefore, we will proceed to analyze
the merits of complainant's harassment allegations.
In order to establish a prima facie case of hostile work environment
harassment in violation of Title VII, complainant must show that:
(1) she belongs to a class of individuals protected under Title VII;
(2) she was subjected to unwelcome conduct related to her membership
in that statutorily protected class; (3) the harassment complained of
was based on her membership in that statutorily protected class; (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. Roberts v. Department of Transp., EEOC Appeal
No. 01970727 (Sept. 15, 2000); McCleod v. Social Security Admin., EEOC
Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. Dundee, 682 F.2d 897
(11th Cir. 1982).
After a careful review of all the evidence in the record, the Commission
finds that complainant has failed to establish a prima facie case
of sexual or retaliatory harassment. We find that there is no basis
for imputing liability to the employer. The record is not disputed
that complainant first reported the incidents of sexual harassment to
management on July 3, 2006. In response, the agency took immediate
and appropriate action by conducting an investigation of complainant's
allegation and transferring the Acting Supervisor outside of complainant's
work facility. Complainant does not allege, nor does the record reveal,
that complainant endured further harassment following management's
transfer of the Acting Supervisor to another facility. As such, we find
the agency responded in a way reasonably calculated to end the harassment.
Therefore, we find no basis of imputing liability to the agency because it
took appropriate remedial action to correct the problem, as stated above.
Accordingly, we AFFIRM the agency's final order implementing the AJ's
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
August 21, 2008
Date
2
0120081769
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081769