Sunshine M. Nelson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid-Western Areas), Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01970636 (E.E.O.C. Feb. 3, 2000)

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.