01975151
04-17-2000
Sandy L. Moore, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region),) Agency.
Sandy L. Moore v. United States Postal Service
01975151
April 17, 2000
Sandy L. Moore, )
Complainant, )
) Appeal No. 01975151
v. ) Agency No. 4D-250-1188-95
) Hearing No. 170-96-8255X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region),)
Agency. )
________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the basis of sex (female), in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The issue on appeal is whether the FAD
properly affirmed the Recommended Decision (RD) of the Administrative
Judge (AJ), who determined that complainant had not been subjected
to sexual harassment by the facility Postmaster from August 18, 1995
through August 31, 1995. The appeal is accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified at 29 C.F.R. � 1614.405).
For the following reasons, we AFFIRM the agency's decision.
The record reveals that during the relevant time, complainant was employed
as a Regular Rural Carrier at the agency's Maidsville, West Virginia
Post Office. Shortly after the Postmaster commenced his duties at the
Maidsville facility, complainant alleged that he touched her in a sexually
inappropriate way on two occasions, and created a hostile work environment
after she rebuffed his first advance. On August 18, 1995, during a route
inspection of complainant's delivery route, complainant alleged that
after asking her a series of personal questions and discussing casual
clothing that she wears, the Postmaster placed his hand on her thigh a
few inches above her knee (complainant was wearing shorts), and stated:
"you and me will have to work this out," in reference to a disagreement
they were having during the route inspection, about the proper procedure
to address a customer request to move a mailbox. Complainant alleged
that she then brushed his hand from her thigh.
Complainant then alleged that on August 25, 1995, the Postmaster informed
her that hours she devoted to maintaining a cash drawer for stamp
sales were going to be reduced (which complainant noted would impact
her annual salary significantly). Complainant alleged, among other
things, that such changes in office procedures and working conditions
resulted from her having rebuffed his sexual advance, and created a
hostile environment. Complainant further alleged that the harassment
continued when the Postmaster asked her repeatedly to do a count of her
cash drawer, and that during one of these cash counts on August 30, 1995,
the Postmaster again brushed his hand and leg up against hers while he
completed a count which she refused to do. Following another request
by the Postmaster for a cash count on August 31, 1995, complainant was
granted a leave from September 1 through November 13, 1995.
The agency investigated complainant's allegations of sexual harassment,
and although the agency found insufficient evidence that harassment
occurred, it agreed to establish mechanisms to ensure that she and
the Postmaster were not alone at the facility, in order to facilitate
her return to work. Complainant returned, but subsequently alleged
that the Postmaster did not honor the agreement, that he watched her
enter and leave the facility by peering through a window, and that he
asked her to sound the truck horn when she returned from her deliveries.
Complainant alleged that she feared for her safety, and again took leave
from January 15, 1996, through May 13, 1996. The agency subsequently
detailed the Postmaster to the Clarksburg, West Virginia facility in
May of 1996, and complainant returned to work.
The Postmaster denied touching complainant's leg on either occasion, and
stated that he informed her the she and he would have to work things out
because they were debating the proper procedure to implement a customer's
request to move a mail box. The Postmaster also stated that repeated
cash counts were necessitated by complainant's refusal to comply with
his requests concerning cash drawer procedures. Finally, the Postmaster
acknowledged changing the procedures for announcing arrival and departure
to the facility, but stated that this was necessary because she did not
accurately report her arrival and departure time.
Believing she was a victim of sexual harassment, complainant sought EEO
counseling and subsequently filed a formal complaint on October 18, 1995.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an EEOC AJ.
Following a hearing, the AJ issued an RD finding no discrimination. The
AJ concluded that complainant failed to establish a prima facie case
of sexual harassment because the totality of the evidence failed to
demonstrate that the Postmaster's actions during the route inspection
constituted a sexual advance, the rejection of which formed the basis of
subsequent employment actions by Postmaster. In reaching this conclusion,
the AJ made specific credibility findings, noting that she believed
the Postmaster's testimony that he told complainant they would have to
work things out in the context of a discussion about the location of
a mailbox. The AJ noted that she did not find complainant's testimony
credible because her initial investigative affidavit, dated September
14, 1995, did not mention the touching incident during the cash count.
The AJ noted that complainant's own notes with her EAP counselor, dated
October 6, 1995, indicated that her EAP counselor informed her that there
was insufficient evidence that sexual harassment occurred, and that she
needed additional proof to substantiate her claim. Shortly thereafter,
in a subsequent affidavit dated October 19, 1995, complainant added the
second allegation of an unlawful touching during the cash count on August
30, 1995.
The AJ also found relevant the testimony of complainant that she informed
her psychiatrist that she had sought EEO counseling in 1993 about problems
she had with another male co-worker in 1993, though her psychiatrist
testified that complainant did not mention any problems with a male
co-worker. Finally, the AJ credited the testimony of another female
witness who previously worked with the Postmaster at another facility.
This female employee testified that the Postmaster once told her that
he loved her, and that upon the advice of an EEO counselor, she informed
the Postmaster that his statement was unwelcome, and the Postmaster did
not again approach her. From this testimony, the AJ concluded that this
witness corroborated the Postmaster because there was no allegation
of an unlawful touching by the Postmaster in this prior situation,
and further, that there was no allegation that the Postmaster created
a hostile environment following her rejection of his advance.
The AJ found that a hostile environment existed at the facility,
but that the hostile environment was not attributable to impermissible
considerations of complainant's sex, but was instead caused by escalating
discord between the complainant and the Postmaster concerning office
procedures. The AJ noted that many of office procedures were changed
when the Postmaster commenced his assignment at the Maidsville facility
in July of 1995, just prior to the alleged incidents in August of 1995.
The agency's FAD adopted the AJ's findings and conclusions. On appeal,
complainant contends, among other things, that the AJ's conclusion
that she was not credible based on her inconsistent accounts of the
alleged touching incidents is misplaced because notes from the EAP
counselor indicate that she reported the incidents of harassment almost
contemporaneous with their occurrence. Complainant also contends that
the AJ's reliance on the previous allegation of sexual harassment against
the Postmaster does not support a credibility finding against her, but
rather, that it should have buttressed her credibility after another
employee alleged an improper sexual advance by Postmaster. The agency
stands on the record and requests that we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. In reaching this conclusion, the
Commission concurs with that AJ's holding that complainant has failed
to establish that she was subjected to unlawful sexual harassment
which resulted in a tangible employment action or created a hostile
environment. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998);
Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
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)
(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, after an independent review
of the record, and considering fully the arguments on appeal proffered
by complainant, finds no significant evidence to contradict the AJ's
credibility findings. Accordingly, the Commission AFFIRMS the agency's
FAD which adopted the AJ's finding of no discrimination.
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).
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:
April 17, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.