Cella Euell v. United States Postal Service 01A52911 April 25, 2006 . Cella Euell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Headquarters) Agency. Appeal No. 01A52911 Agency No. HO-000-0215-03 Hearing No. 280-2004-00354X DECISION Complainant timely initiated an appeal from that agency's final order concerning her equal employment opportunity (EEO) 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 order. The record reveals that complainant, an Accounting Technician at the agency's Accounting Service Center, St. Louis, Missouri facility, filed a formal EEO complaint on March 21, 2003, alleging that the agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when: (1) she was subjected to sexual harassment when shown a photo of a nude man; and she was not personally informed that her leave had been approved. At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing, finding no discrimination. The AJ concluded that complainant failed to establish a prima facie case of discrimination based on sexual harassment or retaliation. Specifically, complainant failed to demonstrate that one isolated instance of a co-worker showing her a picture of a nude man was so severe that it created a hostile work environment. In addition, the AJ concluded that the agency promptly investigated the incident and took action to ensure that a similar incident did not occur. Concerning complainant's claim that she was retaliated against in the handling of her requests for leave, the AJ found that there was no dispute that complainant's supervisor (S) was not aware of complainant's protected activity. This being the case, complainant failed to establish an inference that S's processing of her leave request was motivated by retaliation. Even assuming that complainant established a prima facie case, the AJ found it was undisputed that S only discussed leave with employees if she denied the request. Normally, leave requests were deemed granted if there was no notice to the employee of a denial. In the particular instances at issue, the AJ found that the supervisor granted complainant's leave requests and as such, complainant failed to show that she was harmed in any way. For these reasons, the AJ concluded that the agency had legitimate reasons for its actions and did not discriminate against complainant. The agency's final order implemented the AJ's decision. On appeal, complainant restates many of the same arguments she made in her complaint and her affidavit. In response, the agency reiterates that complainant failed to demonstrate that she was denied leave or disciplined in any way regarding her leave usage. The agency argues that even assuming that complainant establish a prima facie case of sexual harassment, it took appropriate and immediate action to address the incident. We apply the following principles in determining whether a decision without a hearing was appropriate in this case. An AJ may 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, the AJ may not weigh the evidence but rather must 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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. After a review of the record, the Commission finds that the decision without a hearing was appropriate, as there were no genuine disputes of material fact that needed to be resolved. Even assuming that there was a question of fact whether S was aware of complainant's prior protected activity, complainant's claim that her supervisor granted her leave requests without discussion did not satisfy her burden of demonstrating she was subjected to some adverse treatment.<1> Additionally, the record reflected that protected activity in question occurred some three years prior to the incidents in question which was too remote to establish a causal connection. See Torres v. United States Postal Service, EEOC Request No. 05960040 (June 20, 1996) (citing Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987) and Cohen v. Fred Meyers, Inc., 686 F.2d 793, 796 (9th Cir. 1982))( a span of four years too attenuated to establish reprisal). We find that the AJ's decision properly found that this one isolated incident even if true, was not sufficiently severe to create a hostile work environment.<2> We otherwise find that the AJ correctly applied the appropriate regulations, policies, and laws to the facts in the record and that even when construing the evidence in the light most favorable to complainant, no reasonable fact finder could conclude that discrimination occurred. Therefore, a decision without a hearing was appropriate. 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 April 25, 2006 __________________ Date 1Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). 2To establish a prima facie case of harassment based on sex, complainant must show that: (1) she is a member of a statutorily protected class and/or was engaged in prior EEO activity; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct related to his membership in that class; (3) the harassment complained of was based on her membership in that class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Further, the harasser's conduct is to 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 or pervasive to alter the conditions of the victim'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); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).