01981701
10-30-1998
Catherine E. Messer, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Catherine E. Messer v. United States Postal Service
01981701
October 30, 1998
Catherine E. Messer, )
Appellant, )
) Appeal No. 01981701
v. ) Agency No. 1E-991-1012-95
) Hearing No. 380-97-8072X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (female) and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges she
was discriminated against when she was issued a disciplinary Letter
of Warning (LOW) on July 18, 1995, for Unacceptable Conduct, Creating
a Hostile Work Environment, on July 10, 1995. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a PS-05 Maintenance Support Clerk at the agency's Spokane, Washington
Processing and Distribution Center. Following a verbal altercation with a
co-worker (CW) on July 10, 1995, part of which was overheard by an agency
management official (MO1), appellant's supervisor (S1) investigated the
incident when MO1 indicated that appellant had threatened him. S1 found
no evidence of any threat, but found that appellant had been antagonistic
and had raised her voice toward CW during an altercation with CW, though
CW did not raise his voice or become antagonistic. On this basis, S1
recommended that she receive the above-referenced LOW, and CW receive an
official discussion. Appellant's second level supervisor (M1) concurred
with S1's recommendations, and appellant received the LOW on July 18,
1995. A few weeks later, M1 indicated that she canceled the LOW as a
show of good faith toward appellant because appellant had been visibly
upset by the incident and because she had been an employee with long
and distinguished service with the agency. M1 indicated she decided,
in retrospect, that the issuance of the LOW under the circumstances was
unfair to appellant. As a result of the grievance procedure, the LOW
was reduced to an official discussion or instruction.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on September
12, 1995. At the conclusion of the investigation, appellant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a Recommended Decision
(RD) finding no discrimination. The AJ concluded that appellant failed
to establish a prima facie case of retaliation because she failed to
demonstrate a nexus between the issuance of the LOW in July of 1995,
and her prior EEO activity in 1993. The AJ did find that appellant
had established a prima facie case of sex discrimination when CW only
received an official discussion for his role in the same incident.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that as a result of the
agency's zero tolerance policy respecting inappropriate behavior in the
workplace, and appellant's antagonistic behavior toward CW, the agency
issued appellant a LOW, which was subsequently rescinded and ultimately
reduced to an official discussion or instruction. The AJ then concluded
that appellant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
In reaching this conclusion, the AJ weighed carefully the credibility of
appellant, S1, M1, the other witnesses who testified, and evidence that
the agency had enforced its zero tolerance policy on numerous occasions,
resulting in official discussions and letters of warning for both male and
female employees. While recognizing that M1 later concluded the action
was unfair, the AJ determined that there was no evidence to demonstrate
that S1's request for a LOW or M1's concurrence was motivated by gender
or retaliatory animus. The agency's FAD adopted the AJ's RD.
Appellant submitted numerous contentions on appeal which, in sum,
recast the evidence to reach an alternate conclusion, i.e., a finding
of discrimination. In support of her argument, we note that appellant
raised issues of sexual harassment against agency management officials.<1>
The agency 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. While recognizing, as the AJ did, that
the agency admitted it treated appellant unfairly by issuing her the
LOW, we agree with the AJ's assessment that the agency was more likely
than not motivated by its desire to tolerate no instances of workplace
misconduct which could lead to workplace violence. We agree with that AJ
that there is insufficient evidence of gender or retaliatory animus to
support a finding of discrimination, and we discern no basis to disturb
the AJ's findings of no discrimination which were based on a detailed
assessment of the credibility of the witnesses. See Gathers v. United
States Postal Service, EEOC Request No. 05890894 (November 9, 1989);
Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). Therefore, after a careful review of the
record, including appellant's contentions on appeal, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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 the 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 the 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 the 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 (Z1092)
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:
Oct 30, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We point out that to the extent appellant wishes to pursue allegations
neither accepted or investigated by the agency, nor addressed by the AJ,
appellant must first seek EEO counseling respecting any such allegations.