01A14184
12-03-2002
Janice G. Dacanan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Janice G. Dacanan v. United States Postal Service
01A14184
December 3, 2002
.
Janice G. Dacanan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01A14184
Agency No. 4K-220-0161-97
Hearing No. 220-A0-5035X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint alleging
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final order.
The record reveals that complainant, a Distribution Window Clerk
at an agency facility in Arlington, Virginia, filed a formal EEO
complaint alleging that she was harassed, both sexually and sex based,
in August 1997. Complainant contends that: a coworker (C1) touched,
pushed and called her �mean and nasty�; the wife of another coworker (C2)
threatened to blow her head off; another coworker (C3) threatened her
with physical harm; her request for a temporary transfer was denied; and
she was sent to the Employee Assistance Program (EAP). At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge.
Following a hearing, the Administrative Judge issued a decision
finding no discrimination which the agency adopted in its final order.
Complainant did not submit a statement in support of her appeal.<1>
Pursuant to 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
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
After a careful review of the record, we find that that the
Administrative Judge's findings of fact are supported by substantial
evidence in the record. Accordingly, the Commission makes the following
findings: (1) concerning C1, assuming without finding that the incident
between C1 and complainant constituted an incident of sexual harassment,
there is no basis for finding the agency liable because the agency took
prompt and corrective action to ensure that the alleged harassment would
not continue, and it ceased; (2) concerning the threat made by C2's
wife, the evidence establishes that more likely than not, the threat
was made because of complainant's conduct, the wife of C2 witnessed
complainant hugging and kissing C2 at a picnic, and not because of
complainant's sex; (3) concerning C3, the evidence does not establish
that such a threat of physical harm was ever made; (4) concerning the
temporary transfer, the evidence does not establish that the denial was
influenced by complainant's sex; and (5) concerning the referral to the
EAP, the evidence establishes that the referral was based on complainant's
inappropriate conduct, which was characterized as excessively flirtatious,
and not complainant's sex. We therefore conclude that the Administrative
Judge correctly determined that there was no violation of Title VII,
and we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
December 3, 2002
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 The agency requested that the Commission affirm its final order and
in so doing, cited incorrectly to the Commission's standard of review in
on appeal. We direct the agency's attention to 29 C.F.R. � 1614.405(a)
for the appropriate standard of review on appeal, as articulated herein.