Cassandra Harris, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 20, 2000
01980562 (E.E.O.C. Dec. 20, 2000)

01980562

12-20-2000

Cassandra Harris, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Cassandra Harris v. United States Postal Service

01980562

December 20, 2000

.

Cassandra Harris,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 01980562

Agency No. 4F-940-1048-95

Hearing No. 370-96-X2586

DECISION

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

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 Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>

The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<2> For the

following reasons, the Commission affirms the agency's final decision.

The record reveals that complainant, a Distribution Clerk working a

limited duty assignment at an agency facility in Menlo Park, California,

filed a formal EEO complaint on January 31, 1995, alleging that the agency

had discriminated against her on the bases of race (Black), color (black),

sex (female), disability (lower back injury and tendinitis of her hand),

age (DOB: 10/11/52) and in reprisal for prior protected activity<3> when:

(1) her CA-8 form was not timely processed in October and November 1994;

(2) the Postmaster did not allow her to sit in on a Step 2 grievance in

October 1994;

(3) a coworker sexually harassed her thereby creating a hostile work

environment;

(4) the Postmaster disapproved her LWOP request in October 1994;

(5) medical documentation was retained in a Menlo Park personnel file;

and

(6) the Postmaster did not reimburse her $57.00 from a grievance

settlement when approached in October or November 1994.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge. The Administrative Judge issued a decision

following a hearing on issues (1) - (3) and without a hearing on issues

(4) - (6), finding no discrimination. The agency's final decision

adopted the Administrative Judge's decision. On appeal, complainant

restates her position and contends that the Administrative Judge erred

in not finding the agency liable for sexual harassment. In response,

the agency requests that we affirm its final decision.

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

an AJ 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 regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). The Commission applies a de novo standard of

review to factual findings by an Administrative Judge when no hearing

was held and to all conclusions of law whether or not a hearing was held.

Assuming without determining that complainant is a qualified individual

with a disability within the meaning of the Rehabilitation Act, after a

careful review of the record, the Commission finds that the Administrative

Judge's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. We do not find that any

of the agency's actions were in retaliation for complainant's prior EEO

activity or were motivated by discriminatory animus toward complainant's

race, color, sex, age or disability. Furthermore, we find that the

agency took sufficiently prompt remedial action as soon as it received

notice of complainant's claim of a hostile work environment based on

sexual harassment. We discern no basis to disturb the Administrative

Judge's decision. Therefore, after a careful review of the record,

including complainant's contentions on appeal, the agency's response,

and arguments and evidence not specifically addressed in this decision,

we affirm the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 20, 2000

__________________

Date

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2 On 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 29 C.F.R. Part 1614 in deciding the

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

Commission's website at www.eeoc.gov.

3 The record indicates that complainant's prior protected activity was

raised under all three of the above referenced statutes.