01a00243
08-15-2000
George E. Rinehart, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid-West Areas), Agency.
George E. Rinehart v. United States Postal Service
01A00243
August 15, 2000
George E. Rinehart, )
Complainant, )
) Appeal No. 01A00243
v. ) Agency No. 4I-570-0053-97
) Hearing No. 320-98-8377X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Great Lakes/Mid-West Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of sex (male) in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Complainant alleges he was discriminated against when on
June 4, 1997, he was terminated from employment. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that complainant, a Rural Carrier Associate, at the
agency's Montrose, South Dakota facility, filed a formal EEO complaint
with the agency on October 22, 1997, alleging that the agency had
discriminated against him as referenced above. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge
(AJ). Finding there were no material facts in dispute, the AJ issued
a recommended decision without a hearing, finding no discrimination.
The record reveals the following: on November 7, 1996, complainant's
supervisor (female)(�supervisor�) reported that complainant sexually
assaulted and raped her at the Montrose Post Office, when he forced her
to have oral sex with him. The AJ found that immediately following the
assault, the supervisor notified the Human Resources Manager (female),
who contacted an Employee Assistance Program (EAP) Counselor. The Human
Resources Manager, the EAP Counselor, and a Rape Crisis Center Counselor
then accompanied the supervisor to the hospital for an examination.
On November 8, 1996, complainant was arrested and charged with sexually
assaulting and raping his supervisor. On that day, the Acting Manager of
Post Office Operations (male) suspended complainant from his employment.
On November 9, 1996, a Postal Inspector (male) requested an interview
from complainant, but complainant denied the interview.
Complainant went on trial on January 30 and 31, 1997. At that time, the
agency learned complainant's version of the events of November 7, 1996.
Complainant testified at his trial that his supervisor grabbed his crotch
on two occasions that day, and voluntarily performed oral sex on him.
Complainant was later acquitted of the charges.
The Manager of Post Office Operations (female), who was responsible
for determining what actions, if any, should be done regarding the
incident, reviewed the court transcript, as well as the postal inspection
service memorandum and police report. She then investigated the matter
further by interviewing the Manager of Human Resources, the Rape Crisis
Center Counselor, the judge who presided over the case, as well as the
supervisor and complainant. At this time, complainant alleged for the
first time that the sex was not consensual on his part. When the Manager
of Post Office Operations asked him why he had not reported the matter
as sexual harassment, he replied that �it was all in fun.� The Manager
of Post Office Operations further investigated the matter and learned
that complainant never reported inappropriate behavior on the part of
the supervisor.
Thereafter, the Manager of Post Office Operations decided to remove
complainant for Unacceptable Conduct/Sexual Contact on Postal Property.
She averred in her affidavit that based upon her investigation,
she determined that the supervisor's version of the events was more
believable than complainant's story was. Specifically, she stated in her
affidavit that the supervisor immediately reported the incident, and her
story remained consistent throughout. Complainant however, refused to
be interviewed by postal inspectors, and admitted having oral sex with
the supervisor for the first time at his criminal trial. Thereafter,
he told a different story during her interview with him in May 1997.
The AJ found that the District Manager of Customer Services (female),
who concurred in the discipline, also believed the supervisor's story
over complainant's. She averred in her affidavit that on November 7,
1996, she observed the supervisor following the rape, and described her
as emotional, crying and traumatized. The Manager of Human Resources,
who the supervisor immediately called following the incident, testified
in her affidavit as to her observations of complainant that night.
She recalled that the supervisor could barely speak following the
incident. Based on her observations, the Manager of Human Resources
believed complainant forced the supervisor into a nonconsensual act.
Based on her investigation, as well as the record as a whole, on June 4,
1997, the Manager of Post Office Operations issued complainant the Notice
of Removal. The Notice cited the supervisor's statement that complainant
forced her to have nonconsensual sex with him. The supervisor was
transferred, at her request, to another postal facility. Complainant
subsequently filed this complaint.
In her decision, the AJ concluded that complainant failed to establish a
prima facie case of sex discrimination because he failed to demonstrate
that similarly situated employees not in his protected classes were
treated differently under similar circumstances when he was removed
and she was retained. Although he alleged that the supervisor was a
similarly situated individual who was treated better than he was under
similar circumstances, the AJ found this argument to be merit less.
Specifically, the AJ found that the two were not similarly situated in
that complainant was accused of sexual assault, and the supervisor was the
victim of that assault. See Murray v. Department of Commerce, EEOC Appeal
No. 01966705 (July 31, 1995). Therefore, because complainant failed to
show that he was singled out for discipline while someone outside of his
protected class was charged with a similar act, but retained, the AJ found
complainant failed to establish a prima facie case of discrimination.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that after reviewing
documents, including the criminal transcript, and interviewing witnesses,
agency officials collectively believed that complainant sexually assaulted
and raped his supervisor on November 7, 1996. In support of the agency's
reasons, the AJ noted that the Manager of Post Office Operations believed
the supervisor because she immediately reported the incident, and her
story remained consistent. In contrast, complainant was not credible
because his statement was not consistent and he refused to speak with
postal inspectors following the incident.
The AJ noted that in misconduct cases, the critical inquiry is on the
agency's actual belief, regardless whether the agency's belief are later
determined to erroneous. The AJ then determined that complainant failed
to raise a genuine issue of material fact regarding whether the agency
official's belief that he sexually assaulted his supervisor was a pretext
for sex discrimination. Although complainant argued that his acquittal
was tantamount to a finding that the supervisor lied, the AJ disagreed,
stating that the burden of proof is different in a criminal case.
In sum, the AJ found that the agency reasonably believed the supervisor's
version of the events. This belief, and not discrimination, motivated
the decision to terminate his employment.
Although complainant argued that if he was a woman, the agency would
have seen him as the victim, the AJ found that complainant failed to
present any evidence, other than his own assertions, of gender bias.
Lastly, the AJ noted that the agency was obligated pursuant to Title
VII to investigate the matter and take corrective action based upon
its findings. In sum, the AJ found that complainant did not establish
that more likely than not, the agency's articulated reason was a pretext
to mask unlawful discrimination.
On September 9, 1999, the agency issued a final decision adopting the
AJ's recommended decision. This appeal followed.
On appeal, complainant contends, through his attorney, that summary
judgment was inappropriate because complainant established an inference
of discrimination when he was fired and the supervisor was retained.
Also, he noted that an arbitrator believed his version of the events.
The agency requests that we affirm the FAD.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgment is proper when �material facts are not in genuine dispute.� 64
Fed. Reg. 37, 644, 37, 657(1999)(to be codified and hereinafter referred
to as 29 C.F.R. � 1614.109(g)). Only a dispute over facts that are truly
material to the outcome of the case should preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes
over facts that might affect the outcome of the suit under the governing
law, and not irrelevant or unnecessary disputes, will preclude the entry
of summary judgment). For example, when a complainant is unable to
set forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element of
the case would not be material to the outcome. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986). EEOC MD-110, at 7-15 November 9, 1999.
The Commission will apply a de novo standard of review when it review's
an AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. � 1614.109(g). See, EEOC MD-110, at 9-16.
After a careful review of the record, the Commission finds that the AJ's
recommended 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 a discriminatory animus toward complainant's sex. Rather,
the evidence supports the agency's position that they removed complainant
because they believed complainant committed a rape on his supervisor.
This belief, not the arbitrator's as complainant contends, is the critical
inquiry. Complainant failed to introduce sufficient evidence that would
establish a dispute as whether agency officials believed he committed
the assault. We discern no basis to disturb the AJ's recommended
decision. Therefore, after a careful review of the record, including
complainant's contentions on appeal, and arguments and evidence not
specifically addressed in this decision, 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:
August 15, 2000
Date Carlton M. Hadden, 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 Equal Employment Assistant
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.