01970636
02-03-2000
Sunshine M. Nelson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid-Western Areas), Agency.
Sunshine M. Nelson v. United States Postal Service
01970636
February 3, 2000
Sunshine M. Nelson, )
Complainant, )
)
v. ) Appeal No. 01970636
) Agency No. 1-I-551-1001-96
William J. Henderson, ) EEOC No. 260-96-8099X
Postmaster General, )
United States Postal Service )
(Great Lakes/Mid-Western Areas), )
Agency. )
____________________________________)
DECISION
Sunshine M. Nelson (complainant) filed an appeal with this Commission from
a final decision of the United States Postal Service (agency) concerning
her complaint of unlawful employment discrimination, in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq.<1> Complainant's claim of discrimination
is based upon: (1) her sex when she was subjected to a hostile work
environment; and (2) reprisal (prior EEO activity) when, on August 29,
1995, she was terminated. The appeal is accepted in accordance with
EEOC Order No. 960.001.
Complainant sought EEO counseling on September 7, 1995. Following the
filing of a formal complaint and an investigation, complainant requested
a hearing before an EEOC administrative judge (AJ). A hearing took
place on July 9, 1996. On July 29, 1996, the AJ issued a recommended
decision finding no discrimination with respect to claims 1 and 2.
However, the AJ did find discrimination on the basis of retaliation in
that complainant was not reinstated to employment. The agency issued
a final agency decision on October 8, 1996, wherein it adopted the AJ's
finding of no discrimination with respect to claims 1 and 2 and rejected
the AJ's finding of discrimination with respect to the agency's failure
to reinstate complainant. It is this agency decision that complainant
now appeals.
Complainant was a non-career (casual) employee at the agency's St. Paul,
Minnesota Processing and Distributing Center. Her most recent casual
appointment commenced on June 30, 1995, and would have expired on
September 27, 1995.
The record reveals (and the AJ and agency found) that on August 4,
1995, complainant complained to her supervisor (S1) that a coworker (C1)
was sexually harassing her. The postal service immediately conducted an
investigation of the matter and concluded that both complainant and C1 had
engaged in inappropriate behavior.<2> Accordingly, on August 22, 1995,
C1 was terminated, and on August 29, 1995, complainant was terminated.
Pursuant to the union contract, C1 was given 30 days notice prior to
his termination. On February 8, 1996, C1 was reinstated at the Step
3 grievance procedure and his removal was converted to a long-term
disciplinary suspension. The decision to reinstate C1 was made in the
Minneapolis office, not at the St. Paul facility. Because complainant
did not have access to the grievance procedure (since she was a casual
employee), she was not reinstated. Moreover, the record does not indicate
that complainant ever requested reinstatement.
The AJ found that the evidence was insufficient to prove sexual harassment
since the record revealed that the alleged acts complained of were not
unwelcome by complainant. Furthermore, the AJ found that the record
indicated that complainant was terminated not for complaining of sexual
harassment, but rather for engaging in sexual and inappropriate behavior
herself. However, the AJ determined that the failure to reinstate
complainant was discriminatory in light of the fact that C1 (who engaged
in similar inappropriate behavior) was, nevertheless, reinstated.
The agency disagreed with the AJ's finding of discrimination on the
reinstatement issue. Specifically, the agency found that there is no
factual evidence in the record that supports a causal connection between
the sexual harassment complaint and failure to reinstate complainant.
The agency argues that complainant and C1 were not similarly situated
in that complainant was a casual (non-career) employee (without
grievance/arbitration rights), whereas C1 was a career employee (with
rights to the grievance process). The agency further notes that
there is no evidence that complainant even asked to be reinstated.
The agency argues that complainant could prevail in her claims of
discrimination under the facts of this case, only if she established,
by a preponderance of the record, that the agency's stated reasons for
reinstating C1 (settlement of the grievance) were not the true reasons,
but were pretext for intentional discrimination. Since the record is
devoid of such evidence, the agency argues that the AJ erred and that,
accordingly, discrimination was not proven.
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
administrative judge 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 that discriminatory intent did
or did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
We find that the record generally supports the AJ's findings of fact as
set forth herein. However, we disagree with the AJ's ultimate conclusion
that C1 and complainant were similarly situated and that discrimination
is reasonably supported based solely on the fact that C1 was treated
differently than complainant.
As the AJ found and the record clearly indicates, C1 held grievance
rights which he exercised and complainant did not. Those grievance
rights ultimately enabled C1 to obtain a settlement and return to
work under strict conditions. The record is devoid of any evidence
whatsoever that could rebut the agency's legitimate, non-discriminatory
reason for the reinstatement (i.e., that C1 was reinstated pursuant to
the settlement of his grievance). Furthermore, the record is devoid
of any evidence that could reasonably show discriminatory animus.
Accordingly, we find the AJ's finding of intentional discrimination
in error since such finding was based solely upon the fact that C1 and
complainant received different treatment with respect to reinstatement.
We find that under these circumstances there is insufficient evidence
to permit the fact finder to conclude discriminatory intent.
Since appellant presents no new arguments on appeal, we discern no basis
to reverse the agency's finding of no discrimination. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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:
2/3/00
DATE Frances M. Hart
Executive Officer
Executive Secretariat
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
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.
2 While complainant disputes that she engaged in inappropriate behavior,
the record reveals that both complainant and C1 acted affectionate
toward each other. In addition, the record shows that each initiated
inappropriate physical contact and flirtation toward each other.