Gibson v. Potter, 013108 FED5, 07-30521

Docket Nº:07-30521
Party Name:MICHELE GIBSON, Plaintiff-Appellant v. JOHN E POTTER, Postmaster General, Defendant-Appellee
Case Date:January 31, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

MICHELE GIBSON, Plaintiff-Appellant


JOHN E POTTER, Postmaster General, Defendant-Appellee

No. 07-30521

United States Court of Appeals, Fifth Circuit

January 31, 2008

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:05-CV-1942

Before KING, DAVIS and CLEMENT, Circuit Judges.


Michele Gibson ("Gibson") appeals the district court's grant of the defendant's motion for summary judgment. We AFFIRM.


In 2004, the United States Postal Service ("USPS") employed Gibson as a "casual" Automation Clerk at the Processing and Distribution Center in New Orleans. Gibson worked the night shift from 11:00 p.m. to 7:00 a.m. The record shows that, as a casual employee, Gibson did not have a specific assignment and was not subject to work under the same supervisor for every shift. Gibson alleges that on January 14, 2004, Andrew Lea ("Lea"), her supervisor, "grabbed her on the buttocks and made suggestive comments" while she conversed with another employee. Later during that shift, James Nelson ("Nelson"), the Manager of Distribution Operations, approached Gibson and asked her whether she had been inappropriately touched. He informed her of the USPS "zero tolerance" policy toward unwanted touching or sexual harassment. Nelson also informed her that if she experienced future problems, she could speak with him, and that she should expect an apology from Lea. Lea apologized to Gibson soon thereafter.

Aubrey Watson ("Watson"), another Manager of Distribution Operations, investigated the January 14, 2004 incident and indicated that Gibson would not be required to be supervised by Lea again. Watson gave Gibson the option of working another shift, but she declined, citing her lack of transportation. Although Lea denied touching or grabbing Gibson's buttocks, and, instead, admitted to touching the small of her back, Watson recommended that Lea's pay and grade be reduced based upon his improper conduct. Lawrence Darsam, the Acting Senior Plant Manager, instead suspended Lea for fourteen days.

On February 4, 2004, Gibson filed an informal complaint with the Equal Employment Opportunity Commission ("EEOC"), describing the January 14, 2004 incident. After a resolution specialist was unable to resolve the dispute, Gibson filed a formal complaint with the EEOC on May 4, 2004. After receiving the complaint from the EEOC, the USPS issued a letter to Gibson on June 10, 2004, identifying sex discrimination as the issue for investigation. On August 7, 2004, Gibson submitted an affidavit to the EEOC investigator alleging additional misconduct by Lea occurring between October 2003 and January 2004. The EEOC investigator requested details of these allegations, instructing Gibson in a September 10, 2004 letter to Gibson's counsel to submit a supplementary affidavit by December 1, 2004. A second request for Gibson's supplemental affidavit was sent by the EEOC investigator to her counsel on November 11, 2004, reminding counsel of the December 1, 2004 deadline. The EEOC received Gibson's untimely supplemental affidavit on January 3, 2005. The supplemental affidavit alleged a series of events occurring before the January 14, 2004 incident, including Lea engaging in "sex talk", asking for dates, and offering his telephone number to Gibson.

On January 3, 2005, the same day that the EEOC received Gibson's untimely supplemental affidavit, the USPS and the EEOC investigator notified Gibson in writing that the investigation had been completed and that her options included requesting a hearing before an administrative law judge appointed by the EEOC within thirty days or requesting a final agency decision by the USPS without a hearing. Gibson requested a final agency decision without a hearing and the decision was issued on February 22, 2005. The final decision did not consider the additional allegations of sexual harassment, and ultimately found that Gibson had not suffered sex discrimination as alleged:

The records and testimony contained in the investigative report only document that a single incident occurred which resulted in your alleged claim of sexual harassment. Therefore, because of your failure to provide any documented evidence of an ongoing incident, our adjudication of your claim will be based on the accepted issue. At no time during the investigation of this issue did you make Postal management aware of on-going occurrences.

. . . .

After carefully considering the entire record, and applying the legal standards outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); [the EEOC Compliance & Appeals Manager finds] that you have failed to prove that you were subjected to discrimination as alleged.

The final decision also informed Gibson of her right to file a civil action in federal district court, which she exercised onMay31, 2005, alleging that she was subjected to sexual harassment which led to the creation of a hostile work environment. The USPS moved for summary judgment, arguing that Gibson...

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