Carol G. Estepp, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 17, 2000
01a00326 (E.E.O.C. Apr. 17, 2000)

01a00326

04-17-2000

Carol G. Estepp, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Carol G. Estepp, )

Complainant, )

) Appeal No. 01A00326

v. ) Agency No. 1K-211-1086-96,

) 1K-211-1045-96

) Hearing No. 120-97-4327X,

) 120-97-4436X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) complaints of unlawful

employment discrimination on the basis of sex (Female), in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.<1> Complainant alleges she was discriminated against when:

(1) on April 15, 1996, she was placed on Emergency Placement due to a

violent altercation with a female co-worker during which both complainant

and the co-worker made physical contact in front of her supervisor; and

(2) on July 8, 1996, as a result of the altercation, she was issued a

Notice of Removal for Unacceptable Conduct effective August 16, 1996.

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). For the following reasons, the

Commission affirms the agency's final decision.

The record reveals that complainant, a level 4 Mail Processor at the

agency's Frederick, Maryland Post Office, filed formal EEO complaints

with the agency on July 25, 1996 and September 18, 1996, alleging that

the agency had discriminated against her as referenced above.

At the conclusion of the investigations, complainant received a copy

of the investigative reports and requested a hearing before an EEOC

Administrative Judge (AJ). The complaints were consolidated into one

complaint before the AJ. Following the September 25, 1997 hearing,

the AJ issued a decision finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of sex discrimination because she failed to demonstrate that similarly

situated employees not in her protected class were treated differently

under similar circumstances when involved in a similar violent altercation

in front of a supervisor. In particular, the AJ noted that only one

male employee had been involved in a violent argument in front of a

supervisor and a removal action was initiated and retracted during the

investigation of the incident. Further, the AJ found that this sort of

conduct in front of a supervisor's presence demonstrated a great deal

of disrespect and disregard for management. The AJ then concluded that,

upon review of the record, complainant did not establish by preponderant

evidence that the agency's actions were unlawful discrimination.

The agency's final decision implemented the AJ's decision. From this

decision, complainant appeals. On appeal, complainant contends that

the AJ erred in his determination of complainant's actions during the

altercation at issue. Further, complainant claims that the AJ also

erred when he found that the agency's actions were not discriminatory.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as �such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.�

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the AJ's

decision summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We note that complainant failed to

present evidence that any of the agency's actions were motivated by

discriminatory animus toward complainant's sex. We discern no basis to

disturb the AJ's decision.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal and the agency's response, we affirm the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

April 17, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.