01964995
10-01-1998
Gerry R. Kulz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Gerry R. Kulz v. United States Postal Service
01964995
October 1, 1998
Gerry R. Kulz, )
Appellant, ) Appeal No. 01964995
v. ) Agency No. 4-E-890-1116-94
William J. Henderson, ) Hearing No. 340-95-3719X
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
DECISION
Appellant timely initiated an appeal to this Commission from a final
agency decision ("FAD") concerning her equal employment opportunity
complaint, which alleged discrimination on the bases of sex (female) and
disability in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted
in accordance with EEOC Order No. 960.001.
The issue presented is whether appellant proved, by a preponderance of
the evidence, that she was discriminated against on the above-referenced
bases when she was disciplined by the agency for her activities on June 4,
1994.
On June 6, 1994, the Head of Security of a privately-owned warehouse
contacted agency officials to report that, on June 4, 1994, two of his
security guards had observed an automobile and a postal truck parked
in the warehouse's loading dock; the automobile contained a male and a
female in postal uniforms engaging in "various sexual acts." Statement
of Security Guard, Report of Investigation, Ex. 2. After observing the
activity for a short period, the security guards opened the bay door,
surprising the couple. The couple then left in the automobile, leaving
the postal truck behind. Approximately one hour later, the male returned
and retrieved the mail truck. The warehouse's video security system
recorded the presence of the postal truck from 1:15 p.m. to 2:13 p.m.
Agency officials identified the postal truck as being assigned to
appellant during the time in question.
The agency issued appellant a Notice of Removal for: (1) sexual conduct
in uniform on private property; (2) portraying a negative image of
the Postal Service; (3) leaving a postal truck unattended; and (4)
failing to give eight hours work for eight hours pay. At Step 3 of
the grievance procedure, the removal was reduced to a suspension and
appellant was ultimately suspended for 39 days for unacceptable conduct,
portraying a negative image of a Postal Service employee and failing to
give eight hours work for eight hours pay.
The male coworker involved in the incident also was issued a Notice of
Removal. The male coworker's Notice charged him with unacceptable conduct
of a sexual nature while in uniform; driving a postal vehicle without
authorization; and with sexually harassing two other female employees.
Appellant timely sought EEO counseling and filed a formal EEO complaint
which alleged that she was discriminated against on the bases noted
above. The agency accepted and processed the complaint and, pursuant
to appellant's request, submitted the matter to an EEOC Administrative
Judge ("AJ") for a hearing. The AJ's recommended decision ("RD"),
finding no discrimination, was issued without a hearing. See 29
C.F.R. �1614.109(e)(3).
The record reflects that the male coworker was on light duty during the
time in question due to a physical impairment. Appellant contends that
the agency discriminated against her because of her association with
an individual with a disability. In addition, appellant notes that
the male coworker was charged with sexually harassing two other female
employees. While acknowledging that her relationship with the coworker
was consensual, appellant reasons that, had the agency taken action
against the coworker for harassing other employees, then "the incident
I was involved in definitely would not have occurred." ROI, Affidavit A.
The AJ found that appellant failed to establish a prima facie case of
discrimination based on sex or on her association with an individual with
a disability<1> because appellant was unable to establish that persons
outside her protected classes were treated more favorably than she under
similar circumstances. See, e.g., Flowers v. Crouch-Walker Corp., 552
F.2d 1277 (7th Cir. 1977); Potter v. Goodwill Industries of Cleveland,
Inc., 518 F.2d 864 (6th Cir. 1975). Insofar as appellant alleged that
the agency had tolerated a sexually hostile environment created by the
male coworker, the AJ found that appellant could not prevail under this
theory in that appellant had not established that she found his conduct
"unwelcome." See, e.g., Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982); 29 C.F.R. �1604.11.
In its FAD, the agency adopted the RD. On appeal, appellant argues that
the AJ was biased against her. Appellant contends that the AJ should
not have issued a decision without a hearing because appellant disputed
that she engaged in overt sexual activity with the coworker while on
agency time or that she brought disrepute to the agency.
The Commission has considered appellant's contentions on appeal, but is
not persuaded that the AJ erred in issuing a recommended decision without
a hearing. Further, after a careful review of the record, the Commission
finds that the AJ's RD adequately set forth the relevant facts and
analyzed the appropriate regulations, policies and laws. The Commission
discerns no basis to disturb the AJ's finding of no discrimination.
Therefore, it is the decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 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 (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 1, 1998
________________ ___________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 See 29 C.F.R. �1630.8. The Commission notes that the record only
indicates that the coworker was on light duty and does not establish that
he was an individual with disability as defined in 29 C.F.R. �1614.203.