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