Kelley D. Heithcock v. United States Postal Service
01A40566
July 13, 2004




Kelley D. Heithcock,
Complainant,

v.

John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.

Appeal No. 01A40566

Agency No. 4H-370-0113-01

DECISION

Complainant timely initiated an appeal from a final agency decision
(FAD) 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.  The appeal is accepted pursuant
to 29 C.F.R. § 1614.405.  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 Part-Time Flexible Clerk, Grade Level 5, at the agency's
Franklin, Tennessee Post Office.  Complainant sought EEO counseling and
subsequently filed a formal complaint on March 21, 2001, alleging that
she was discriminated against on the basis of sex (female) when from
December 15, 2000, through January 24, 2001, complainant was subjected
to a hostile work environment when her supervisor called complainant
demeaning names and referred to her in derogatory terms.

At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
Complainant timely requested a hearing before an AJ; however, she
subsequently withdrew her hearing request in favor of the agency issuing
a final decision in the matter.

BACKGROUND

In its FAD, the agency concluded that complainant failed to establish
a prima facie case of sex-based harassment.  Specifically, complainant
failed to prove that she was subjected to unwelcome conduct because of
her sex which created a hostile work environment that agency management
officials failed to correct.  The agency requests that we affirm its FAD.

On appeal, complainant contends that she did establish a prima facie case
of discrimination based on sex.  First, she claims that her supervisor's
conduct of calling her “Fat Ass,” “Big Butt,” “Big Bottomed Girl,” and
other similar monikers, was unwelcome despite the fact that she often
joked about her weight.  She further alleges that other men around the
office were not called similar names and that the phrase “Big Bottomed
Girl” could only refer to females, therefore meeting the requirement that
the conduct complained of was based on sex.  The agency does not contend
otherwise.  Complainant also asserts that such conduct created a hostile
work environment in that it caused her to become physically ill.  Finally,
complainant contends that agency management failed to correct the problem.

FINDINGS AND ANALYSIS

In order to establish a prima facie case of sex-based harassment,
the complainant must prove, by a preponderance of the evidence,
the existence of five elements: (1) she is a member of a statutorily
protected class; (2) she was subjected to unwelcome conduct related to
her sex; (3) the harassment complained of was based on her sex; (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.  See Henson v. City of Dundee, 682 F.2d 897,
903 (11th Cir. 1982).  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).  Furthermore, the Commission has held that a
“totality of the circumstances” approach is proper in determining whether
the alleged conduct constitutes harassment.  29 C.F.R. § 1604.11(b).

Applying these standards the Commission finds that the agency's
determination that complainant failed to establish a prima facie case
of sex discrimination was appropriate.  In reaching this conclusion,
we first note that complainant's membership in a statutorily protected
class is undisputed.  Complainant asserts that the name-calling was
unwelcome despite the fact she referred to herself in a similar manner
on various occasions.  The record reflects that complainant asked her
supervisor to stop calling her names and disparaging her in front of
her co-workers.  The supervisor, however, failed to change his behavior.
By requesting that such conduct stop, the complainant clearly indicated
that it was unwelcome.

The third element of a prima facie case of sex-based harassment requires
that the harassment complained of was based on complainant's sex.
Complainant asserts that by calling complainant “Big Bottomed Girl,” the
supervisor made distinctions based on her sex.  There is no indication
that he referred to males in a similar manner.  Accordingly, we find the
record supports that such comments were made based on complainant's sex.

In order to create a hostile work environment, however, harassment cannot
consist of mere isolated incidents.  It must be so severe or pervasive
as to render the environment so intolerable as to alter the conditions
of an individual's employment.  See Harris v. Forklift Systems, Inc.,
510 U.S. 367 (1993) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986)).  Such an analysis must be made using a “reasonable person
standard.”  The Commission has held that a reasonable person is one
with the perspective of the victim.  Enforcement Guidance on Harris
v. Forklift Systems, Inc., 915.002 (March 8, 1994).  Specifically, one
must analyze whether a reasonable person in the victim's circumstances
would have found the alleged behavior to be hostile or abusive.  Id.
Complainant contends that her supervisor's name-calling created a hostile
work environment that subsequently impacted her health.  She cites
an occasion on December 16, 2000, where the supervisor called her a
name and complainant became “too sick to finish the day,” after which
she left work and was hospitalized.  However, complainant's affidavit
reveals that she had been sick since the previous evening and had shown
up late to work that day.  Upon her arrival, the supervisor, asked,
“Where has that fat ass been?”  Complainant continued to feel ill and
left work early to go to the hospital.  Complainant offers no proof that
the illness directly resulted from her supervisor's comments.

Furthermore, the agency contends that complainant often laughed and
poked fun at her own weight in front of co-workers, therefore indicating
that she did not consider the supervisor's comments to be abusive.  Yet,
despite her ability to treat her perceived shortcomings with levity, by
complaining to her supervisor about his behavior, she claims that such
conduct was offensive.  However, it is the complainant's burden to prove
that such behavior was severe or pervasive.  Other than the isolated
instances mentioned in the record, complainant fails to establish that
her supervisor's conduct was severe or pervasive.  She fails to even
estimate how frequently he called her disparaging names or treated her in
an offensive manner.  Moreover, while complainant lists a few individuals
as witnesses to the isolated behavior, many of those witnesses testified
that they thought complainant and her supervisor were friends and kidded
in jest.  While a reasonable person in the complainant's position could
find the supervisor's behavior upsetting, we find that it was not severe
or pervasive enough to render the environment so intolerable as to alter
the conditions of her employment.  Because complainant has failed to
prove the existence of a hostile work environment, we need not address
whether there is a basis for imputing liability to the agency.

Accordingly, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we find that complainant failed to establish
that she was subjected to harassment on the basis of sex, and hereby
affirm the FAD.

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

July 13, 2004
__________________
Date