Sharon K. Rhodes, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionDec 21, 2001
01994888 (E.E.O.C. Dec. 21, 2001)

01994888

12-21-2001

Sharon K. Rhodes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.


Sharon K. Rhodes v. United States Postal Service (Great Lakes Area)

01994888

December 21, 2001

.

Sharon K. Rhodes,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Great Lakes Area),

Agency.

Appeal No. 01994888

Agency Nos. 4-J-606-1075-96; 4-J-606-1207-96; 4-J-606-1254-96

Hearing Nos. 210-98-6470X; 210-98-6471X; 210-98-6541X

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning her consolidated equal employment opportunity (EEO)

complaints 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleges she was discriminated against on the bases of:

(1) her sex (female) and reprisal for prior protected EEO activity under

Title VII, when she was subjected to harassment on two occasions by an

agency supervisor starting on or about August 22, 1995;

reprisal when she was issued a notice of removal dated November 17,

1995 because she had allegedly altered a PS 3971 form;

her sex and reprisal when she was written up on or about May 17,

1996; and

sex and reprisal when she was denied overtime on or about September

8, 1996.

The record reveals that at the relevant time, complainant was employed

as a Mark-Up Clerk at the agency's Chicago Central facility, Chicago,

Illinois. Complainant filed formal EEO complaints with the agency on

January 24, 1996 and September 2, 1997, alleging that the agency had

discriminated against her as referenced above. The agency consolidated

the complaints and an investigation was initiated. At the conclusion of

the investigation, complainant was provided a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

Following a hearing, the AJ issued a decision finding no discrimination

as to the claim of sexual harassment and the write-up of May 17, 1996.

The AJ, however, recommended a finding of discrimination as to the denial

of overtime and the notice of removal.

Administrative Judge's Findings

The AJ concluded that complainant did not prove, by a preponderance

of the evidence, that she was subject to harassment by her supervisor.

Complainant alleges that on August 22, 1995, her supervisor (S1) called

her into his office and proceeded to make inappropriate statements

regarding her attire. In his testimony, S1 states that on that date

he noticed complainant was not dressed appropriately, and that while

she was in his office he informed her that her attire was in violation

of the dress code. The record reflects that a few days after the

incident in question, complainant informed her upper-level supervisor

of the alleged sexual harassment and an investigation was conducted.

The investigation found no harassment. Complainant further alleges that

on or about October 27, 1995, S1 made sexual comments to her while they

were alone in his office. S1 denies that this incident occurred.

The AJ found that complainant did not dispute the fact that she was

not wearing a uniform on August 22, yet did not offer any evidence as

to what she wore to work on that date. Further, the AJ found that when

complainant reported this alleged harassing behavior to management, prompt

action was taken to determine the validity of the complaint. The AJ

concluded that it is within a supervisor's duty to enforce the dress code,

and that there is insufficient proof as to complainant's allegation.

With regard to the statements of October 27, 1995, the AJ found no

persuasive evidence such an event occurred, noting that complainant first

raised this claim more than two years after the date of the alleged event.

Therefore, the AJ issued a finding of no discrimination with regard to

complainant's claim of harassment based on sex and reprisal.

As to complainant's claim that she was subject to reprisal and sex

discrimination when she was written up in May, 1996, the AJ concluded

that complainant failed to offer any evidence of the write up at any

point during the investigative process. As a result, the AJ found that

complainant abandoned the allegation.

With respect to complainant's claims regarding the denial of overtime

and the notice of removal, the AJ issued a finding of discrimination.

This finding was due, in part, to sanctions taken against the agency as

a result of its failure to comply with discovery, and its failure to

�timely investigate these allegations when the pertinent records were

still available.� (RD page 16) Specifically, the agency was instructed

by the AJ on several occasions to produce the various affidavits and

documents in response to complainant's motion for discovery. When the

agency failed to comply, complainant made a motion for sanctions on

January 27, 1999. The AJ denied the request, stating that there appeared

to be special circumstances causing the agency's delay. However, the

agency never responded to three of the four discovery requests, and did

not indicate any time frame for the completion of directed discovery. The

AJ therefore notified the parties that the hearing, which was scheduled

to take place on February 4, 1999, would address only the issue of the

alleged sexual harassment, and that he would re-consider appropriate

sanctions against the agency.

The agency issued a FAD finding no discrimination as to all claims.

On appeal, complainant reiterates her contention that she was subject

to sexual harassment by her supervisor. Complainant also argues that

the AJ's findings of discrimination should stand. The agency requests

that we affirm the FAD.

Analysis and Discussion

With respect to complainant's claims of sexual harassment by her

supervisor, we find that the AJ was correct in determining that

complainant failed to establish by a preponderance of the evidence

that such harassment occurred. In order to establish a claim of sexual

harassment, complainant must show that: (1) she belongs to a statutorily

protected class; (2) she was subjected to unwelcome conduct related to her

gender, including sexual advances, requests for favors, or other verbal

or physical conduct of a sexual nature; (3) the harassment complained

of was based on sex; (4) the harassment had the purpose or effect of

unreasonably interfering with her work performance and/or creating an

intimidating, hostile, or offensive work environment; and (5) there is

a basis for imputing liability to the employer. See Henson v. City of

Dundee, 682 F.2d 897 (11th Cir. 1982).

Here, complainant has adduced no persuasive evidence that her supervisor

made any inappropriate comments, or subjected complainant to any conduct

of a sexual nature. S1 denies that the events of October 27, 1995

transpired as alleged by complainant, and complainant has presented no

corroborating evidence or testimony. We find that complainant has not

proven, by a preponderance of the evidence, that she was subjected to

sexual harassment by S1 on that date. Further, we find that the evidence

of record supports a finding that while S1 informed complainant that he

believed her attire violated the agency dress code on August 22, 1995,

it is clear that enforcement of the dress code is within the duties

of a supervisor, and thus S1's behavior did not constitute sexual

harassment under Title VII. Therefore, we affirm the AJ's finding of

no discrimination.

Complainant also alleges she was subjected to reprisal discrimination with

regard to the alleged August 22 and October 27, 1995, incidents. A prima

facie case of reprisal discrimination can be established by showing that:

(1) she engaged in a protected activity; (2) the agency was aware of

her protected activity; (3) subsequently, she was subjected to adverse

treatment by the agency; and (4) a nexus exists between the protected

activity and the adverse action. The causal connection may be shown by

evidence that the adverse action followed the protected activity within

such a period of time and in such a manner that a reprisal motive is

inferred. McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973);

Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425

F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Simens

v. Department of Justice, EEOC Request No. 05950113 (March 28, 1996)

(citations omitted). We find that complainant has failed to establish a

prima facie case of reprisal discrimination in that she has not shown

that S1 was aware of her prior protected activity at the time of the

alleged harassment.

As to complainant's contention that she was written up in May,

1996, we concur with the AJ's finding that complainant abandoned the

claim. Complainant presented no evidence of the alleged write-up and

makes no mention of this claim on appeal. We therefore affirm the AJ

with regard to this claim and issue a finding of no discrimination.

Regarding the AJ's sanctions against the agency, we note that EEOC

Regulation 29 C.F.R. � 1614.109(f)(3), along with EEOC Management

Directive 110 Chapter 7, pp.9-10, authorize the Commission's

Administrative Judges to sanction either party for failure to fully

and timely respond to orders issued during the hearing process, without

good cause shown. Such sanctions may include an adverse inference that

the requested information would have reflected unfavorably on the party

refusing to provide the requested information, exclusion of other evidence

offered by the party refusing to provide the requested information,

or issuance of a decision fully or partially in favor of the opposing

party. Id. However, these sanctions must be tailored to appropriately

address the underlying conduct of the party being sanctioned. A sanction

may be used to both deter the non-complying party from similar conduct

in the future, as well as to equitably remedy the opposing party.

If a lesser sanction would suffice to deter the conduct and to equitably

remedy the opposing party, an AJ may be abusing his or her discretion to

impose a harsher sanction. See Catella v. GSA, EEOC Appeal No. 01A05649

(April 18, 2001).

Here, the AJ concluded that in light of the agency's failure to comply

with directed discovery, the agency was prohibited from submitting

any further evidence with regard to the proposed removal in November,

1995, and the denial of overtime in September, 1996. Further, any

evidentiary shortcomings with respect to each allegation were construed

against the agency. In his decision, the AJ states that these sanctions

were necessary because it is neither �appropriate or logical to require

complainant to rebut an evidentiary void left by the agency.� (Decision

page 19).

We find that the AJ in this case was well within his authority when

he sanctioned the agency for its "unjustified refusal" to respond to

discovery, resulting in significant prejudice to complainant's prosecution

of her complaint. Pacheco v. United States Postal Service, EEOC Appeal

No. 01970691 (November 25, 1998). The Commission concurs with the AJ's

conclusion that the agency failed to proffer adequate justification for

its actions in this matter. The regulations further provide that when

an agency fails, without good cause shown, to respond fully and in a

timely fashion to discovery requests for documents, records, comparative

data, statistics, affidavits or the attendance of witnesses, the AJ,

in appropriate circumstances, may issue a decision fully or partially

in the complainant's favor. 29 C.F.R. � 1614.109(0(3)(iv). We also find

that when an agency fails to properly investigate timely complaints, the

resulting evidentiary deficiencies may be assessed against the agency.

See McGee v. United States Postal Service, EEOC No. 01982488 (March 12,

1999) and Grenwal v. United States Postal Service, EEOC No. 01982792

(March 12, 1999). Based on the evidence of record, the Commission

discerns no basis to disturb the AJ's finding of discrimination.

After a careful review of the record, the Commission finds that the AJ's

decision summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We discern no basis to disturb the

AJ's decision. Accordingly, it is the decision of Commission to REVERSE

the agency's FAD and reinstate the AJ's decision. In order to remedy

complainant for its discriminatory actions, the agency shall comply with

the following order.

ORDER

The agency is ORDERED to take the following remedial action:

any reference to complainant's proposed removal of November, 1995,

be expunged from her personnel record;

complainant be paid overtime for a full day on September 8, 1996,

including any applicable interest;

The issues of compensatory damages and attorney's fees are REMANDED to

the Hearings Unit of the Commission's Chicago District Office. The agency

is directed to submit a copy of the complaint file to the EEOC Hearings

Unit within fifteen (15) calendar days of the date this decision becomes

final. The agency shall provide written notification to the Compliance

Officer at the address set forth below that the complaint file has

been transmitted to the Hearings Unit. Thereafter, the Administrative

Judge must be assigned in an expeditious manner to further process the

issues of compensatory damages and attorney's fees in accordance with

the regulations; and

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Chicago Central facility, copies of

the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 21, 2001

__________________

Date