George E. Rinehart, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid-West Areas), Agency.

Equal Employment Opportunity CommissionAug 15, 2000
01a00243 (E.E.O.C. Aug. 15, 2000)

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.