Shironda McCloud, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0120063286 (E.E.O.C. May. 8, 2007)

0120063286

05-08-2007

Shironda McCloud, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.


Shironda McCloud,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Eastern Area),

Agency.

Appeal No. 01200632861

Agency No. 1C-401-0020-05

Hearing No. 240-2005-00176X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's April 4, 2006 final order concerning her equal

employment opportunity (EEO) complaint alleging 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. Complainant alleged that her

supervisor sexually harassed her when:

(1) On February 20, 2005, he stared at her and made unwelcome comments

to her;

(2) On February 21, 2005. he told her he would give her Friday off if

she would go dancing with him at a club;

(3) On February 21, 2005, he grabbed her arm when she reached to get

her timecard from the rack, and

(4) During the week of February 20, 2005, he changed her non-schedule

day.

Complainant timely requested a hearing before an EEOC Administrative Judge

(AJ) which was held on February 28, 2006. The AJ issued her decision a

month later on March 28, 2006, finding no evidence of sexual harassment.

The agency subsequently adopted the AJ's decision in its final order.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ 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 Brd., 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 AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held. On the

other hand, the AJ's credibility determinations based on the demeanor

or tone of voice of the witnesses will be accepted unless documents or

other objective evidence so contradicts the testimony, or the testimony

so lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (Nov. 9, 1999).

After a review of the record in its entirety2, it is the decision of the

Equal Employment Opportunity Commission to affirm the final agency order

because the AJ's ultimate finding, that unlawful employment discrimination

was not proven by a preponderance of the evidence, is supported by

substantial evidence in the record. Therefore, finding no error in the

AJ's factual and legal analysis, 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

May 8, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 We note that neither complainant nor the agency made arguments on

appeal.

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0120063286

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

3

0120063286

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