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.