Victoria Newman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 9, 2005
01a50165 (E.E.O.C. Mar. 9, 2005)

01a50165

03-09-2005

Victoria Newman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Victoria Newman v. United States Postal Service

01A50165

March 9, 2005

.

Victoria Newman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A50165

Agency No. 6F-000-000-1-04

DECISION

Complainant timely initiated an appeal from a final agency decision

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. For the following reasons,

the Commission affirms the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Program Manager at the agency's Headquarters Computing

Information Services. Complainant sought EEO counseling and subsequently

filed a formal complaint on December 16, 2003, alleging that she was

discriminated against on the basis of sex (female) when on October 8,

2003, Supervisor 1 gave her an unsolicited forceful massage.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision.

A review of the record shows that on October 8, 2003, complainant

accused Supervisor 1 of giving her a forceful massage while she was

on the telephone. Supervisor 1 states that he placed his hands on

complainant's shoulder to get her attention, and when complainant did not

respond he assumed that the telephone call required her full attention,

and returned to his office. A coworker states that she was aware that

complainant's supervisor had touched complainant and it caused her pain.

The coworker stated that she could see the incident bothered complainant.

On the following day, the coworker encouraged complainant to go and

speak with Supervisor 1 about the incident.

Complainant states that on October 9, 2003, she confronted Supervisor 1

about the incident. Complainant stated to Supervisor 1, that whatever

he did to her yesterday hurt her and that she cannot move her neck,

and believes that she may have a pinched nerve. Complainant advised

Supervisor 1 that she was leaving early because she was scheduled to meet

with a chiropractor. Supervisor 1 stated that he had a conversation with

complainant the same day as the alleged massage and everything seemed

fine. Supervisor 1 stated that �at no point that day did complainant

act unusual, nor did she mention anything about my putting my hands on

her shoulders.�

On October 10, 2003, complainant sent an electronic mail message to

her department stating that she injured her neck and would not be in

the office. Complainant was then scheduled for annual leave and did not

return to the office until October 20, 2003. Complainant states that when

she returned to the office from annual leave, Supervisor 1 held a closed

door meeting with her expressing his dissatisfaction with her being on

leave and to discuss some performance issues. Complainant states that

Supervisor 1 closed the door and began pacing around his office yelling

at her. On October 22, 2003, complainant states that she could barely

open her mouth due to the pain in her left jaw and could not move her

neck and had an appointment with a chiropractor. On October 22, 2003,

complainant also contacted the EEO and Injury Compensation offices to

find out how to report the inappropriate touching incident and injury.

On October 23, 2003, complainant began the injury compensation paperwork.

On October 24, 2003, complainant met with her primary care physician and

sent an electronic mail message to the agency that she would be out of

the office through October 29, 2003.

Supervisor 1's immediate supervisor, Manager A states, that on October

14, 2003, Supervisor 1 advised her of the alleged incident. On October

23, 2003, Manager A asked the Human Resource Analyst to investigate

complainant's allegation of inappropriate touching. Manager A states

that the Human Resource Analyst advised her on October 31, 2003, that

complainant did not feel comfortable returning to work under Supervisor 1.

Manager A immediately transferred complainant to the supervision of

Supervisor 2, who is in another department. Supervisor 2 states that

complainant informed him that she was intimidated by Supervisor 1 who had

said �hello� to her in the hallway. Supervisor 2 advised complainant that

he would advise Supervisor 1 not to speak with complainant. Complainant

declined Supervisor 2's offer to speak with Supervisor 1. Supervisor 2

also asked complainant if she felt comfortable with her new assignments

and believed that she was being challenged. Supervisor 2 states that

complainant responded favorably.

Complainant states that when she returned to the office under Supervisor

2, Supervisor 1 approached her and began speaking to her in a way that

made her feel uncomfortable. Complainant states that she advised her

new supervisor that she did not feel comfortable because Supervisor 1

still had access to her. Complainant also advised the Human Resource

Analyst of her concerns and states that she was not comfortable working

in the IT department. Complainant states that the Blackberry assignment

she received from Supervisor 2 required her to work indirectly with

Supervisor 1 and/or go to his department to speak with coworkers.

Complainant requests compensatory damages for pain, suffering and

emotional distress in the amount of $120,000. Complainant states that

she was diagnosed with a Para Spinal spasm and neck strain and that she

experiences chronic severe pain in her neck and shoulder.

In its final decision, the agency concluded that complainant failed to

establish a prima facie case of hostile work environment in that she

failed to show that the complained of conduct was based on her protected

status or had the purpose or effect of unreasonably interfering with her

work performance and/or creating an intimidating, hostile or offensive

work environment. Moreover, the agency found that complainant had not

shown that there is a basis for imputing liability to the agency.

In the instant case, we find that complainant belongs to a protected class

and that she was subjected to unwelcome conduct. However, complainant has

not shown that the harassment complained of was based on sex or had the

purpose or effect of unreasonably interfering with her work performance.

The Commission finds that complainant failed to show by persuasive

evidence that the incident occurred different than Supervisor 1 explained.

The evidence in the record does not persuasively show that the action

of Supervisor 1 touching complainant's shoulder was based on sex or was

motivated by anything other than an attempt to get complainant's attention

while she was on the telephone. The record contains no evidence from

witnesses to the incident other than complainant and Supervisor 1.

The burden is on complainant to show discrimination and she has not

met that burden. Moreover, the actions of Supervisor 1, albeit not

welcomed, were insufficiently severe and pervasive so as to create an

intimidating or hostile work environment. Even assuming Supervisor 1

massaged complainant's shoulder as claimed by complainant, that incident

by itself is insufficient to establish a claim of sexual harassment.

Accordingly, the agency's final decision finding no discrimination

is AFFIRMED.

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

March 9, 2005

__________________

Date