Sandy L. Moore, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region),) Agency.

Equal Employment Opportunity CommissionApr 17, 2000
01975151 (E.E.O.C. Apr. 17, 2000)

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.