0120102416
04-27-2012
Alla Morozovich, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Alla Morozovich,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120102416
Hearing No. 560-2009-00090X
Agency No. 1J632000908
DECISION
On May 14, 2010, Complainant filed an appeal from the Agency's April 22, 2010 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a mail handler at the Bulk Mail Center in Hazelwood, Missouri. On September 23, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity when, since November 2007, she has been sexually harassed; appropriate action was not taken when she reported the sexual harassment; and she was subjected to more harassment after complaining about it.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on February 3, 2010 and issued a decision on April 15, 2010. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant asserts on appeal that the AJ's credibility findings were not supported by the evidence and that she was unfairly prejudiced by the fact that three of the Agency witnesses did not testify at the hearing.
STANDARD OF REVIEW
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 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 AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness 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 Equal Employment Opportunity Commission (EEOC) Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
The AJ's decision sets forth the evidence established in the record. The evidence shows that Complainant's job entails sorting mail and working in an open work area with large machinery. Complainant testified that initially, she and her first-line supervisor (S1) (male) had a cordial relationship. However, Complainant asserts that a few weeks after her 90-day performance evaluation, S1 began making remarks to her, such as: "Why do you work here? You have a nice car. Do you have a sugar daddy?" In addition, Complainant testified that in December 2007, S1 noticed that she was tired and asked her "What is wrong; were you up all night having sex?" Complainant also testified that while she was with a female coworker (C1), S1 asked her if she was "going out to have sex" after work. In addition, Complainant testified that S1 frequently hugged her at work. Complainant testified that she repeatedly told S1 to leave her alone and not to hug her, but he did not stop. Complainant further asserts that there was an occasion when she went to the employee break-room for a male coworker's (C7) retirement party. According to Complainant, S1 paged her, then "stormed in and screamed" at her that she had not asked his permission to attend the party.
In April 2007, Complainant began working under a different supervisor (S2) (female). Complainant testified that during this time-frame S1 periodically came to her work area and made comments about her underwear and asked her if she was "interested" in other male employees and having sex with them. Complainant also testified that between April and May 2007, S1 came to her work area on five occasions and continued to hug her. Complainant testified that S2 was a good supervisor, but that S2 had given her a Letter of Warning for attendance issues.
In May 2007, S2 retired and Complainant was assigned a new supervisor (S3) (female). Complainant testified that one or two weeks later, S3 began her harassing her. Complainant stated that S3 yelled at her for not working on the machinery. Complainant also testified that S3 told her she was lazy and a bad worker. The AJ further notes that Complainant testified that on June 5, 2008, S3 told her that she was going to terminate Complainant's employment and gave her a job discussion. The record shows that Complainant left work that day and has not returned.
The AJ notes that S1 denied ever discussing personal matters with Complainant, making inappropriate gender-based statements, or hugging Complainant. S1 testified that when Complainant began working under him, she performed her duties well. S1 also testified that over time, Complainant began complaining that the mail trays were too heavy and she expressed her dislike of her job. S1 further testified that Complainant also began arriving late to work on a regular basis. Moreover, according to S1, Complainant was also frequently absent from her work station, and he had to use a pager to locate her.
The AJ also notes that C1 did not corroborate Complainant's testimony. Neither did six other coworkers who worked with Complainant and S1. In fact, one of the six witnesses denied observing any harassing conduct despite the fact that Complainant identified such witness as having observed "all of the harassment." The consensus among Complainant's coworkers and supervisors was that no one observed S1 acting in the manner described by Complainant. The AJ also noted that numerous coworkers and supervisors corroborate S1's account that Complainant had performance issues.
The AJ also notes that the only witness who supports any portion of Complainant's testimony is a former male employee (C2) who was never supervised by S1. Specifically, C2 testified that in June 2008, Complainant was working on her assigned machine when S1 asked Complainant if she was "wearing panties today" since he could not see any panty lines. C2 also testified that later, S1 was holding Complainant's wrist and he saw Complainant back away from S1. C2 further testified that Complainant later told him that she had enough and was going to file an EEO complaint. The AJ noted that C2 admitted that he did not report the incident, although he believed that Complainant looked frightened. However, another male coworker (C3) testified that he was standing next to Complainant during this alleged incident and did not hear S1 make any inappropriate comments. In addition, one of Complainant's female coworkers testified that Complainant told her that if she was terminated from her employment, she would sue the Agency alleging that the Manager of Distribution Operations (M1) had sexually harassed her.
M1 did not testify at the hearing but disputed Complainant's assertion that she advised him of the alleged harassment by affidavit. M1 also stated that Complainant only notified him that S1 was a "hard" supervisor. M1 testified that Complainant requested a different supervisor, and he granted her request. The AJ noted that S1 corroborates M1's testimony. The acting Manager of Distribution Operations between 2007 and April 2008 (M2) also denies that Complainant informed her that S1 was engaging in any harassing behavior.
Another female coworker (C6) testified that after Complainant stopped working at the Agency, she asked her to prepare a statement concerning her work. When C6 asked her why she needed a statement, Complainant told her that she was filing an EEO against S1 because she had a better chance of winning a sexual harassment claim against him. The AJ also notes that C6 testified that she dated C2 during the relevant time period, and C2 told her that he could not believe what Complainant said about S1 because he thought S1 seemed like a nice guy. The AJ found C6's testimony credible. Specifically, the AJ notes that C6 was forthright with her answers, she maintained eye contact with the AJ, and appeared very comfortable with her responses, yet such responses did not seem rehearsed. Moreover, the AJ concluded that C6 did not appear to have any bias for or against S1.
The AJ also concludes that the alleged harassment should have been readily observable by many employees on the workroom floor. However, other than the statement regarding Complainant's "panties," no other alleged statement or inappropriate act was observed by any of the identified witnesses. Moreover, the AJ did not find C2's testimony in support of the alleged "panties" comment to be credible. The AJ did find S1's testimony to be credible, however. Specifically, the AJ noted that S1 was forthright, he testified without hesitation, and displayed a professional demeanor at all times during the hearing. The AJ also found C4 and C6's testimony credible, finding their answers forthright and unrehearsed. In addition, the AJ notes that Complainant's testimony appeared rehearsed and memorized. Accordingly, the AJ concluded that the testimony of S1, C4 and C6 was more credible than Complainant's.
The AJ also concludes that the assertion that Complainant reported the alleged harassment prior to her EEO counselor contact is not supported by the evidence. Specifically, the AJ notes that both M1 and M2 deny knowledge of the alleged harassment. According to the AJ, M2 provided credible testimony at the hearing. Specifically, the AJ notes that M2's testimony was forthright. Moreover, according to the AJ, M2 was professional and at ease with her testimony.
Accordingly, after weighing all of the evidence, the AJ concluded that Complainant failed to establish, by a preponderance of the evidence, that the alleged harassment actually took place. With respect to Complainant's allegations of retaliation, the AJ concludes that the preponderance of the evidence does not support a finding that the alleged treatment toward Complainant by any of her supervisors was motivated by her EEO activity or that she was treated less favorably because of her EEO activity.
Contrary to Complainant's assertions on appeal, we find substantial evidence in support of the AJ's credibility determinations and factual findings. Complainant focuses primarily on C2's testimony which in some cases contradicts S1's testimony. However, as noted above, the AJ concluded that C2's testimony lacked credibility, as did Complainant's testimony when compared with other witnesses. We do not find sufficient evidence in the record to undermine the AJ's credibility determinations.
Complainant also asserts on appeal that she was unfairly prejudiced by the failure of three Agency witnesses to appear (and be subject to cross-examination) at the hearing. The record shows that one of the three witnesses (M1) was retired from the Agency at the time of the hearing. During the hearing, the AJ noted M1's failure to appear and concluded that neither the Agency nor the EEOC could compel his testimony since M1 was no longer an Agency employee. The AJ also noted the failure of two employees (E1 and E2) to appear at the hearing. The Agency attorney (A1) stated on the record that E1 and E2 were instructed in writing to appear at the hearing and their failure to appear was unexplained but would result in disciplinary action. Hearing Transcript (HT), pg. 293.
With respect to M1, we agree with the AJ in noting that neither the Agency nor the EEOC has the power to compel testimony from a witness who no longer works for the Agency. See Hick v. Dep't of the Air Force, EEOC Appeal No., 0120063925 (November 28, 2007); Wiatr v. Dep't of Defense, EEOC Appeal No. 0120073515 (October 29, 2010). We also note that M1's testimony focused mainly on the Agency's affirmative defense which is not a determining factor in the AJ's decision. In addition, we find it unlikely that M1 is a critical witness given the fact that Complainant failed to raise an objection when M1's failure to appear was noted at the hearing. Moreover, the record shows that the AJ did not rely heavily on M1's written statements, noting that she gives little weight to the statements of witnesses who do not testify at the hearing. HT, pg. 210.
With respect to E1 and E2's non-appearance, we find that the undisputed record indicates that the Agency notified the witnesses of the date and time of the hearing in accordance with the Commission's regulations and expected them to appear at the hearing. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7, � III (Nov. 9, 1999). Although the AJ proceeded with the hearing without E1 or E2's testimony, as noted above, she gave little weight to their written statements. In addition, we conclude that Complainant's failure to raise an objection at the hearing diminishes the importance of the testimony that could have been obtained during cross-examination.
In addition, to the extent that the Agency's failure to produce E1 and E2 at the hearing was inappropriate, we find that Complainant has not established that she was harmed. Complainant does not proffer facts that could have been obtained in support of her claims had she been able to cross-examine E1 or E2. Therefore, we conclude that Complainant has not shown how the omission of E1 or E2's testimony hampered her case. See Keene v. U.S. Postal Service, EEOC Appeal No. 01A04830 (Jan. 24, 2003).
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 27, 2012
__________________
Date
2
01-2010-2416
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013