Deborah F. Douglas-Slade, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMay 22, 2000
01976350 (E.E.O.C. May. 22, 2000)

01976350

05-22-2000

Deborah F. Douglas-Slade, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Deborah F. Douglas-Slade v. Department of the Interior

01976350

May 22, 2000

Deborah F. Douglas-Slade, )

Complainant, )

) Appeal No. 01976350

v. ) Agency No. OSM-94-025

) Hearing No. 100-95-7627X

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

)

DECISION

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

(FAD) concerning her equal employment opportunity (EEO) complaint

of unlawful employment discrimination on the bases of sex (sexual

harassment), and reprisal (prior EEO activity), 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)

she was subjected to ongoing sexual harassment through the creation

of a hostile environment, when her supervisor (S-1) allegedly engaged

in unwelcome advances and language, leering, and personal touching of

a sexual nature; and (2) she was subjected to sexual harassment and

retaliation when after she rejected S-1's advances, she received a

less than outstanding performance rating in July 1994, and her working

conditions were adversely affected in that she received less desirable

office space and work assignments and she was denied job training

opportunities, office equipment, and other office support. 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 FAD.

The record reveals that during the relevant time, complainant was employed

as a Program Analyst, GS-13, at the agency's Office of Surface Mining

headquarters facility. Believing she was a victim of discrimination,

complainant sought EEO counseling and, subsequently, filed a formal

complaint on August 31,1994. The agency accepted and investigated

the complaint. At the conclusion of the investigation, complainant

received a copy of the investigative report and requested a hearing

before an EEOC Administrative Judge (AJ). Following a hearing, the AJ

issued a Recommended Decision (RD) finding no discrimination.

With regard to issue (1) above, although the AJ did not explicitly

conclude that complainant failed to establish a prima facie case of sexual

harassment discrimination, the AJ found the testimony of complainant

and one of her witnesses not credible in this matter, based on their

demeanor, that of another witness to be based on hearsay, and that of

a third witness as failing to show sexual harassment. Most significant,

the AJ found not credible complainant's assertion that her first reaction

to sexual harassment was to report it, when complainant failed to report

the alleged sexual harassment by S-1 for over six years until she received

her 1994 performance rating. In contrast, the AJ found "highly credible"

S-1's denial of complainant's sexual harassment allegations, based on

his demeanor at the hearing.

With regard to issue (2) above, while the AJ similarly did not explicitly

conclude that complainant failed to establish a prima facie case, the

AJ did find that complainant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination and retaliation. In reaching this conclusion, the AJ

found that complainant adduced no evidence that would lead the AJ to

suspect that the reasons articulated by S-1 for complainant's less

than outstanding 1994 performance rating and her working conditions

were pretextual. These reasons were as follows: as far as the 1994

performance rating was concerned, complainant failed to pull the internal

communications team (which she headed) together, and she also failed to

consult S-1 when she decided to discontinue submission of the corrective

action tracking report. As far as working conditions were concerned,

(1) office space was assigned first by seniority and second by lottery,

(2) complainant did not get a new computer because she already had

one (which was upgraded at a later date), (3) she was not denied a

calculator, and (4) her allegation of denial of training was vague and

unsubstantiated. The FAD then adopted the AJ's RD, modifying it to more

accurately reflect the testimony of S-1 regarding the extensive reasons

for complainant's less than outstanding 1994 performance appraisal.

Complainant makes many contentions on appeal, chief among them that

S-1's testimony was the most inconsistent at the hearing and therefore

not credible, that the AJ put too much stock in complainant's facial

expressions in deciding that complainant's testimony was not credible,

and that complainant was clearly retaliated against when reassigned to

work in a "dark and damp storage room." In reply, the agency notes that

the reasons articulated by S-1 for complainant's receiving a less than

outstanding performance rating were more extensive than those cited

by the AJ in her RD, and that nothing in the record or complainant's

testimony substantiates the alleged sexual harassment or retaliation.

In general, the Commission will not disturb the credibility determinations

of an AJ, particularly where, as here, these determinations are based

on the demeanor of the witnesses. The Commission has consistently

held that credibility determinations require more deference than other

findings of fact. Esquer v. United States Postal Service, EEOC Request

No. 05960096 (Sept. 6, 1996).

In addition, 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 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). A finding that discriminatory intent did not exist is a

factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293

(1982). The Commission determines that the post-hearing factual findings

of the AJ were supported by such substantial evidence as outlined above.

After a careful review of the record, the Commission thus finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

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

present credible evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or constituted sexual

harassment. We discern no basis to disturb the AJ's Findings of Fact

and Conclusions of Law, except as MODIFIED by the agency's citing more

extensive reasons for giving complainant a less than outstanding 1994

performance rating. 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 FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

May 22, 2000

Date Carlton M. Hadden, Acting Director

1 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 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.