Ranne v. Department of the Treasury

Dianne E. Ranne v. Department of the Treasury
01A32979
February 11, 2004
.



Dianne E. Ranne,
Complainant,

v.

John W. Snow,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 01A32979

Agency No. 01-2269

Hearing No. 310-A2-5052X

DECISION

Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 28, 2003, finding that it was
in compliance with the terms of the June 24, 2002 settlement agreement
into which the parties entered.  See 29 C.F.R. § 1614.402; 29 C.F.R. §
1614.504(b); and 29 C.F.R. § 1614.405.

The June 24, 2002 settlement agreement provided, in pertinent part, that:
  1.  The Bureau agrees; that upon receipt of the medical information from
  [Complainant's] psychologist and the Bureau's psychologist/psychiatrist
  which states that [Complainant's] phobia is resolved to the point that
  her emotional stability and level of anxiety would not be adversely
  affected by the presence of insects or crickets, regardless of the
  number of insects or crickets or the time spent around them, and that
  it would not reasonably interfere with her ability to concentrate
  or perform the duties and responsibilities of a police officer, it
  will non-competitively temporarily promote, not to exceed one year,
  [Complainant] to a police officer position (at the grade and step
  she was at the time she was last employed as BEP police officer). If
  [Complainant] successfully completes this one-year probationary period
  without incident or need of accommodation for her phobia, the Bureau
  will make her promotion permanent.




 2. [Complainant]

  ..........

d. Agrees to successfully complete and pass all physical and medical
requirements of a police officer.

  ..........

3. [Complainant] acknowledges, understands and agrees that in the event
that her psychologist or the Bureau's psychologist/psychiatrist do
not definitively state that her phobia is resolved to the point that
her emotional stability and level of anxiety would not be adversely
affected by the presence of insects or crickets, regardless of the
number of insects or crickets or the time spent around them, and that
it would not reasonably interfere with her ability to concentrate or
perform the duties and responsibilities of a police officer, or if she
fails to pass the medical or physical requirements of a police officer,
or fails to pass the firearm requirements of a police officer she will
not be placed in the position of police officer.

By letter to the agency dated April 3, 2003, complainant through her
attorney, alleged that the agency breached the settlement agreement
and requested that the agency implement the terms of the agreement by
reinstating her to the position of a police officer.  Specifically,
complainant claimed that the agency breached the settlement agreement
on February 5, 2003, when it determined that complainant would not be
reinstated as a police officer because she failed the requisite hearing
portion of the physical examination.  Complainant further alleged that
her hearing was the same as it was when she was initially hired by the
agency as a police officer; and that despite her hearing impairment,
she successfully completed her probationary period and performed her
duties competently for the years of 1998, 1999 and 2000.  Furthermore,
complainant alleged that the agency acted in bad faith in settling
her complaint.

In its July 28, 2003 FAD, the agency found there was no breach.
The agency determined that the language in provision 3 of the settlement
agreement required complainant to undergo a physical examination in
order to be a police officer.  The agency further determined that
because complainant failed the requisite audiometric test, she was
not placed in the position of a police officer.  The agency concluded
that there was no evidence that any of the agency officials engaged in
bad faith during negotiations of complainant's settlement agreement.
Specifically, the agency concluded that complainant was represented by
an attorney and that they had a reasonable period of time to consider
the terms of the settlement agreement.

EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996).  The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990).  In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule.  See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991).  This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature.  See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).

In the instant case, we find that the agency properly found no breach.
Specifically, we find the language in provision 2.d. states that
complainant agrees to successfully complete and pass all physical and
medical requirements of a police officer.  We also find the language
in provision 3 states that if complainant fails to pass the medical or
physical requirements of a police officer, she would not be placed in
the position of police officer.  Here, complainant failed the requisite
hearing test which resulted in her not being placed in the position
of a police officer.  Additionally,  complainant has failed to show
that the agency engaged in bad faith or that she was misled during the
negotiations of complainant's settlement agreement.  Therefore, we find
that the agency complied with the June 24, 2002 settlement agreement.

Accordingly, the agency's final decision finding no settlement breach
is hereby AFFIRMED.


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

February 11, 2004
__________________
Date

�

Lowery v. Department of the Navy

Diane Lowery v. Department of the Navy
01982409; 01A10301
September 14, 2001
.


Diane Lowery,
Complainant,

v.

Gordon R. England,
Secretary,
Department of the Navy,
Agency.

Appeal Nos. 01982409; 01A10301

Agency Nos.  DON-95-60042-001; DON-96-60036-012
Hearing Nos. 370-96-X2657; 370-97-X2822
DECISION

Complainant timely initiated two appeals from two Final Agency Decisions
(FAD) concerning her 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 appeals are accepted pursuant to 29 C.F.R. § 1614.405 and consolidated
pursuant to  29 C.F.R. § 1614.606.

Complainant alleges she was discriminated against on the basis of her sex
(female) when: (1) she was sexually harassed by a Senior Chief, who later
became her supervisor, when on September 11, 1995, he told her that she
could lose her job if she did not cooperate with his suggestion that
they could have some sexual fun together; and (2) when on September
19, 1995, the Senior Chief told her that she could lose her job if
she did not loosen up while working at the bar and make her customers
happy (Complaint No. 1).  In addition, complainant alleges that she was
discriminated on the bases of sex (female) and reprisal for her rejection
of a co-worker's sexual advances when she was terminated on November 8,
1995 (Complaint No. 2).

For the following reasons, the Commission AFFIRMS the agency's final
decisions.

Complainant initiated EEO contact on October 24, 1995 with respect to
the first Complaint.  She filed a formal Complaint on December 1, 1995.
After an investigation was conducted, complainant requested a hearing
which took place on January 16 and 21, 1997.  At the time of the hearing,
the agency was in the process of investigating the second EEO complaint
filed by complainant concerning her November 1995 termination.  While the
administrative judge (AJ) suggested the possibility of holding the first
complaint in abeyance so that both complaints could be consolidated
at the hearing, both parties expressed the belief that a decision on
the first complaint would lead to a settlement or withdrawal of the
second complaint.  Accordingly, the hearing went forward on the first
complaint and the AJ issued a decision on October 31, 1997 finding no
discrimination.  Specifically, the AJ determined that complainant failed
to prove, by a preponderance of the evidence, that she was subjected to
sexual harassment.

With respect to the second complaint, the AJ dismissed the matter without
a hearing concluding that  her previous findings of fact served to bar
complainant from proceeding to a hearing.  The findings of fact which
barred complainants claims were as follows.  The AJ determined in the
first hearing that: (1) Complainant did not prove that she was subjected
to a sexual assault on September 11, 1995; (2) Complainant did not
prove that the Senior Chief made sexually offensive comments to her on
September 19, 1995; (3) Complainant  contacted two agency officials about
her allegations of sexual harassment after she received the October 13,
1995 Advanced Notice of Proposed Removal; and (4) Complainant did not
report the alleged sexual harassment to her supervisor (S1).

The agency issued two separate FADs on the complaints referenced above
and found that complainant failed to prove, by a preponderance of the
evidence, that discrimination occurred.  Complainant appealed each FAD.

Complainant's Testimony:

The AJ summarized complainant's testimony as follows.  Complainant began
her employment as a bartender at the Recreation Center at Concord Naval
Weapons Station (CNWS) on September 11, 1995.  Complainant testified
that on that day, she was introduced to a Senior Chief (SC) (male) by
a former bartender (W1) (female), who stated “this is the new bartender
... can you believe she has six children?”  Complainant testified that
SC helped W1 lift a heavy CO2 bottle, had a coke, and left the Recreation
Center bar.  Complainant also testified that W1 left shortly thereafter at
approximately 12:30 p.m.   According to complainant, at approximately 1:00
p.m., SC returned to the bar and asked where the liquor and condiments
were kept.  Complainant testified that although she did not understand SC
to have any job responsibility involving the bar, she thought as Senior
Chief he was planning on helping to “get the club going” for the men under
his command.  Complainant further testified that after she showed him the
alcohol and condiments, he asked to see the laundry room.  She testified
that he walked into the room while she followed him and explained the
use of the different linens.  Complainant testified that SC asked her
if she liked her job, and she responded that she did.  Complainant also
testified that SC said, “Would you like your job some more?”  Complainant
testified that when she asked what he meant, he backed up and closed
the laundry room door with his left hand.  Complainant testified that
she again asked what he meant and he replied, “we could have some fun,
if you would like.”  When she responded that she”really [wasn't] into
that at all,” he stated that “it would make it much better for you.”
Complainant testified that she said, “no, I really don't think so.”  Then,
according to complainant, SC “poked [her] in the chest real hard” and
said, “I think it would be advisable if you just loosen up and you are
not so rigid.”  She responded by saying, “you have got to be kidding me.
What are you doing?”  Complainant also testified that she asked him to
take his hand off the door which he was apparently blocking.

Complainant testified that she tried to lift his hand off the door
but was unable to do so.  She testified that she said, “I really think
you ought to leave open the door so I can get out of here” and that he
poked her in the chest two times “real hard.”  She testified that he
then said, “just loosen up,” and that he “ripped at the top of [her]
blouse.”  She further testified that SC then started opening her pants.
According to complainant, he forced her pants open and then took his
penis out.  Complainant testified that SC penetrated her and ejaculated.

According to complainant, after the sexual assault, SC threatened to kill
her if she told anyone and that “[her] kids [were] going to find [her]
dead.”  He then left the laundry room.  She testified that she “laid down
on the floor” for fifteen to twenty minutes.  She then grabbed a rag,
closed her pants, and left the room.  She testified that she went to the
bar, got some bleach or disinfectant, and attempted to clean herself up
in the bathroom.  She then put on a long white sweater jacket to cover
up her ripped shirt and bleached pants.

According to complainant, she worked the rest of her shift after
the assault.  She testified that she contemplated calling security
or the base captain but decided that SC would learn of her report.
She then decided she would report SC but only for sexual harassment
since, as she testified, “he cannot kill me for that.”  According to
her testimony, complainant then attempted to reach her supervisor (S1)
(male) on the same day as the assault.  She testified that after three
tries she reached him and told him that “the Senior Chief had come in
and he tried to seduce [her] and sexually harass her.  It was terrible
... [she couldn't] believe this [was] happening.”  Complainant testified
that she did not give any details but that S1 told her to calm down and
that he would take care of it.

Complainant further testified that on the same day as the assault,
she called a former co-worker, (W2) (male) and told him that she
was having problems with “this chief” who had sexually harassed her.
Complainant testified that she called W2 again that night and told him
that she thought she was “doing better” and that she was “going to try
to put this out of [her] mind.”  According to complainant, W2 opposed
that idea and confirmed that she had told her immediate supervisor about
the “harassment.”   Complainant further testified that the night of the
assault she told her son that she had been “seduced.”

Complainant testified that on the following day she went to work and
saw SC.  SC was upset over the recission of the “free soda policy” for
on-duty security.  She also testified that SC told her that some customers
had complained about her “hostility” and “rudeness” the night before
when she had tried to close the bar at 12:30 a.m. (the appropriate time).



Complainant also testified that she spoke again with S1 on September 12,
1995.  She testified that she called S1 to discuss the free soda policy
and also asked him if anything was being done about SC.  According to
complainant, S1 stated that “it is being handled.  Don't you worry
about it.”

Complainant testified that she did not see SC again until September 19,
1995.  On that date, according to complainant, S1 entered the bar with
SC and told her they needed to have a meeting with her.  At that time,
S1 told her that he was leaving Concord Naval Weapons Station and that SC
was becoming her new supervisor.  S1 also told her that he had received
complaints from customers about her, including a claim that she had been
found sleeping on the job.  Complainant testified that she expressed
shock that S1 had come in with SC and that she asked right in front of SC,
“[S1], what are you going to do about SC and what happened?”  Complainant
testified that S1 put his hand in front of her mouth and said, “we are
not going to discuss it now.”  Then, in spite of her protests, S1 left
without SC.  Complainant further testified that SC then reiterated that
she needed to “loosen up” and “make these guys happy” and that if she
did not do so, “it could wind up into where we get the whole security
force after [her] into a gang bang.”  Complainant testified that she
told SC to “get the ‘F' out of here” and then tried to call S1 again.
Complainant testified that she was unable to contact S1 so she called
W2 and told him that her current supervisor was doing nothing to address
the problem that the harasser was going to be her new boss.

Complainant also testified that the next day (September 20, 1995) she
called the base chaplain's office.  According to complainant, she left a
message with a male secretary.  The chaplain called her on September 22,
and complainant testified that she told him she was being “very badly
sexually harassed” and mentioned the name of her harasser.  Complainant
testified that the chaplain told her to contact the EEO office on base.

Complainant further testified that sometime prior to September 26, 1995,
she strained her arm dragging some wet styrofoam mats out of the bar.
She eventually filled a worker's compensation claim and had to take time
off from work beginning on or about September 26, 1995.  While she was
out on leave, she received an Advanced Notice of Proposed Removal dated
October 13, 1995.  The Notice was signed by SC.

Complainant testified that she spoke to the chaplain two more times after
her termination (once shortly after she lost her job and once before
the EEO investigation.  She also testified that she hand-delivered a
letter regarding the sexual harassment to the Executive Officer (XO)
(female) prior to September 26, 1995 and later mailed a certified/return
receipt letter to XO after complainant received the Advanced Notice of
Proposed Removal.

Complainant presented three witnesses to corroborate her version
of events.  Her two sons, ages 21 and 26, both testified that their
mother became depressed, reclusive and irritable in mid-September, 1995.
One son testified that his mother told him that a chief sexually harassed
her and it some how involved the laundry room.
Complainant also presented the testimony of a psychologist (P1)
under whose care she has been since September 20, 1996.  P1 testified
that he was the first person to whom complainant revealed the actual
sexual assault.  P1 testified that after two sessions and a series of
psychological tests, he formed the opinion that complainant was telling
the truth about having been raped by SC.

S1 testified that complainant never informed him of the September 11,
1995 incident.  He further generally denied everything testified by
complainant that related to her informing him of sexual harassment.

The chaplain testified that according to his October 1995 telephone
bill, the first time he spoke with complainant was on October 21, 1995.
He testified that she did relate something along the lines of a sexual
assault or harassment.  He also testified that she did name SC as her
harasser.   The chaplain testified that he did not speak with complainant
in September 1995.

W1 testified that she introduced SC to complainant in September, 1995.
She further testified that she did not know that complainant had any
children.  In addition, W1 testified that the diagram of the laundry
room entered as an exhibit did not accurately reflect the position of
the washer and dryer which were in actuality pushed up against the back
wall in the left corner, leaving several feet between the door and the
washer and dryer.

XO testified that she did not learn of complainant's sexual harassment
allegations until the chaplain came to her office on October 23, 1995 and
told her about his call with complainant.  She further testified that she
called S1 at that time and asked if he had been informed of complainant's
allegations, to which he responded in the negative.  XO also testified
that complainant hand-delivered a letter with complainant's responses to
the intent to remove her around October 24, 1995.  XO also testified that
she received via base mail complainant's appeal to the Notice of Removal.

SC testified that he met complainant on September 11, 1995 when they were
introduced by W1.  SC testified that W1 did not mention that complainant
had any children.  SC further testified that he ate his lunch in the
recreation center and then returned to his office.  He denied returning
to the recreation center at any time on September 11, 1995.   SC also
generally denied all of complainant's allegations that he sexually
assaulted or harassed her.  SC also corroborated S1's testimony that he
left with S1 after their meeting with complainant on September 19, 1995.

W2 declined to testified at the hearing.






AJ's Findings and Conclusions

The AJ determined that complainant's witnesses corroborated a finding
that complainant did not make up the sexual harassment allegations
after she received notice of her proposed removal.  However, because
complainant's witnesses' testimony was vague and lacked specificity,
the AJ found that these witnesses did not corroborate complainant's
claim that she was sexually assaulted.

With respect to the rape allegation, the AJ noted that complainant failed
to tell anyone about the rape until more than a year after the incident.
While P1 concluded that complainant was telling the truth, as the agency
counsel pointed out, P1 never spoke to SC, S1, XO, or the chaplain, or
considered any other evidence which contradicts complainant's versions
of events.  Furthermore, the AJ found “disturbing inconsistencies in
[complainant's] story.”  For example, the AJ noted that at one point in
the hearing, she testified that after SC left the laundry room following
the attack, she “laid down on the floor” for fifteen to twenty minutes.
Shortly thereafter, complainant testified that she did not lay down but
rather sat there.  In addition, in her affidavit testimony complainant
stated that she went into the laundry room first and SC was in back
of her.  However, at the hearing complainant testified that SC went
into the laundry room first.  In her affidavit testimony, complainant
testified that she left the laundry room first and went to the bar to use
the phone as SC came out.  At the hearing, complainant testified that she
remained in the laundry room for fifteen to twenty minutes after he left.

The AJ noted that complainant admits that there are inconsistencies
between her affidavit and her hearing testimony but contends that these
contradictions flow naturally from her desire to conceal the rape because
of SC's threats on her life.  However, the AJ found that complainant's
affidavit does not merely leave out the assault from an otherwise accurate
portrayal of the events of September 11, 1995.  Rather, according to
the AJ, complainant's affidavit testimony contains some blatant errors.
For example, complainant stated in her affidavit that SC came out to the
bar, grabbed her arm and said, “you have just lost your job,” to which she
replied, “no, you have just lost your job, whatever it is.”  According to
complainant's hearing testimony, this exchange did not take place at all.

In addition, complainant's testimony regarding her September,
1995 attempts to give management notice of the sexual harassment is
uncorroborated by her own witnesses and contradicted by the agency
witnesses.  Accordingly, the AJ determined that the preponderance of the
evidence strongly suggests that complainant did not tell any management
official of the alleged sexual harassment until after October 20, 1995,
when she received the Advance Notice of Proposed Removal.  Thus, the
AJ determined that, management had no opportunity to take appropriate
remedial action prior to complainant's leaving the work place due to her
injury and subsequent termination.  The AJ noted that the agency cannot be
held liable for any sexual harassment which occurred prior to September
19, 1995 (the day complainant learned SC was to be her new supervisor)
because SC had no apparent or actual authority over complainant which
he used to further any alleged harassment.
While complainant also testified that SC made sexually offensive comments
to her on September 19, 1995 after she learned that SC was to be her
new boss, the AJ concluded that the preponderance of the record does
not establish that SC made the alleged sexually offensive comments.
The AJ noted that both SC and S1 testified that they left the meeting
on September 19, 1995 together.

The AJ noted in her decision that complainant faced a very difficult task
in attempting to prove that a man with an apparently impeccable prior
record committed a violent sexual assault on a woman he had just met and
under very risky circumstances.  Complainant's obstacles of proof are
compounded by her failure to report the alleged assault to anyone until
more than a year later or to preserve any physical evidence.  Furthermore,
the AJ found complainant's testimony “rife with internal inconsistencies,
and her account of relevant post-assault events is uniformly refuted by
the testimony of S1, SC, XO and the chaplain.  In addition, the AJ found
that complainant never provided a wholly satisfactory explanation for
why she feared violent retaliation from SC if she reported the assault,
but not if she claimed he had sexually harassed her.  Accordingly,
based upon the evidence before her, the AJ concluded that complainant
failed to prove her claims by a preponderance of the evidence.

Complaint No. 2

With respect to complainant's second complaint, the AJ granted the
agency's motion to dismiss the complaint without a hearing because the
AJ's prior findings of fact served to bar complainant from proceeding
to a hearing since the second complaint alleged she was terminated due
to her resistance to SC's harassment and/or in retaliation for having
complained of the harassment to her supervisors.

The AJ noted that she made the following factual findings: (1)
Complainant did not prove that she was subjected to a sexual assault
at the hands of SC on September 11, 1995; (2) Complainant did not prove
that SC made sexually offensive comments to her on September 19, 1995;
(3) Complainant contacted the chaplain and XO about her allegations
of sexual harassment after complainant received the October 13, 1995
Advanced Notice of Proposed Removal; and (4) Complainant did not report
the alleged sexual harassment to S1.

With regard to any claim that complainant was terminated in retaliation
for having complained of SC's harassment to S1, the chaplain, and XO, the
AJ concluded that she previously found that complainant did not complain
to any of these individuals until after she received the proposed notice
of termination.  Accordingly, the facts preclude a finding of retaliation.

With respect to complainant's claim that SC (after becoming her
supervisor in October 1995) terminated her because she refused his
advances, the AJ concluded that the testimony at the January 1997
hearing indicated that S1, not SC, initiated the removal action for
complainant.  While complainant contends that the identity of the
person responsible for firing complainant is still in dispute, the
AJ concluded that resolution of this issue is not necessary for her
to find that complainant is collaterally estopped from litigating the
quid pro quo issue.  The AJ determined that in the January1997 hearing,
complainant had a chance to fully and fairly litigate her claim that
SC had sexually harassed her in September 1995.  According to the AJ,
complainant did not prove that the alleged sexual assault and the related
sexual comments occurred on September 11, 1995, nor that SC made sexual
comments to her on September 19, 1995.<1>  While complainant testified
that some contact with SC occurred on September 12, 1995, she failed to
claim that any sexually inappropriate conduct took place on that date.
The AJ concluded that since the issue of sexual harassment has been fully
and fairly litigated, and being that complainant failed to prove that
she was sexually harassed, the AJ found that complainant cannot proceed
on her quid pro quo claim, regardless of the fact that the issue of who
made the decision to terminate her has not been adjudicated.

The Agency adopted the findings and conclusions of the AJ in its FADs.

The complainant argues on appeal that the credibility of the agency's
witnesses is severely undermined by substantial inconsistencies.
Furthermore the complainant argues that the only conclusion to be drawn
from these inconsistencies is that the agency officials were attempting
to cover up the truth.  Specifically, complainant contends, inter alia,
that S1 and SC contradict each other in their testimony regarding whose
decision it was to terminate complainant.  Complainant noted that SC
testified that S1 wrote the proposal letter of termination and left
it on the middle of SC's desk for him to sign on his first day in
the new position.  SC testified that he then faxed the letter to the
Bureau of Personnel in Washington, D.C. for review.  He received it
back with some modifications, retyped it and sent it to complainant.
S1, however, testified that he wrote the proposal letter and faxed it
to the Bureau of Personnel in Washington, D.C. before he left his job
on September 30, 1995.  The Bureau of Personnel had not sent it back
before September 30, 1995.  He put it in a locked file and specifically
informed SC that he had sent it to the Bureau of Personnel and they would
be sending it back to SC.   Complainant contends that this inconsistency
indicates that S1 and SC are lying.  Moreover, complainant argues that
the circumstantial evidence makes it very unlikely that S1 had anything
to do with the proposal letter.  In addition, complainant contends that
S1 testimony indicates that he was unfamiliar with the contents of the
removal letter.  S1 also testified that he had not personally observed
complaints about complainant's performance.  Rather, he testified that
his removal letter was based on complaints he had received from others
(XO and SC).  S1 even testified that XO came to the bar several times
and had seen complainant working.  However, XO and SC both testified
that neither of them had observed complainant working, nor had they
complained to S1 about her.  Accordingly, complainant argues that she was
terminated for conduct that S1 never witnessed but claims to have learned
from XO and SC, yet XO and SC never witnessed complainant's performance.
In addition, complainant points out that she had only worked two weeks
before injuring herself, and notes that it is extremely unusual for any
employee to be terminated after such a short time.

Complainant also argues on appeal that agency witnesses contradict each
other in their testimony as to when they discovered the allegations of
sexual harassment.  Specifically, complainant notes that S1 testified that
the first time he heard anything about the sexual harassment allegations
was when the EEO counselor contacted him, in about December 1995.  Yet XO
testified that as soon as the chaplain called her about complainant's
allegations, which was prior to the EEO complaint filing, she called
S1 to ask him about his knowledge of the allegations.  Similarly,
SC testified that he heard about the allegations for the first time
from the EEO counselor.  SC stated that XO was not allowed to discuss
the allegations with him.  XO testified that she first heard of the
allegations from the chaplain.  XO testified that she did not receive any
letter from complainant dealing with the sexual harassment allegations.
However, XO testified in her affidavit that she thought the letter
was addressed to her and not to SC.  Complainant argues that the only
letter addressed to XO was the letter raising the allegations of sexual
harassment and accordingly, XO must have received such letter instead
of the letter responding to the proposed removal.   Complainant also
asserts the SC's testimony about when he learned of the alleged rape
cannot be true since complainant's counsel did not inform anyone of that
fact until a later date.

Complaint also argues that based upon the chaplain's testimony it
is likely that he first spoke to her in September, 1995 rather than
October 1995.  The chaplain testified in his affidavit that he believed
the telephone call to him occurred “shortly” after the September 11,
1995 incident.  The chaplain mention nothing about a removal but did
mention hearing about an incident of sexual harassment involving SC.
Complainant asserts that if the chaplain's first conversation with
complainant occurred after she had received the proposed termination,
he certainly would have remembered discussing the proposed termination.
Similarly, if the chaplain had been aware of the proposed termination, his
discussion with XO would have included a discussion about the termination,
however, XO testified that they discussed the sexual advances allegedly
made by SC and there was no testimony that they discussed the termination.
Complainant asserts that these facts prove that the chaplain was not
aware of the termination after his first discussion with complainant.

Complainant also alleges that the inconsistencies in her testimony
were minor and should not have been a basis for discrediting her entire
testimony.

 Analysis and Findings

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).

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 with respect to her sexual harassment
and reprisal claims.

While we agree with complainant's assertions that there are a number
of inconsistencies between the agency witnesses, we nevertheless, find
substantial evidence in the record to uphold the AJ's findings of fact.
We simply find that the AJ had a sufficient basis to conclude that
complainant was not credible.  In addition, while there may be ample
reasons to also find the agency witnesses not credible with respect to
the reasons for complainant's termination and perhaps when they were
advised of the alleged harassment<2>, a finding that the agency witnesses
were also not credible does not change the fact that complainant also
lacked credibility.  Since complainant has the burden of proof, the AJ's
finding that complainant was not credible is sufficient in this matter
to preclude a finding of discrimination.

In addition, given the fact that the AJ's findings of fact are supported
by substantial evidence, we agree with the AJ's determination that
complainant could not prevail on her claims of sexual harassment and
reprisal when she was terminated on November 8, 1995 (Complaint No. 2),
since an essential element of each claim was previously litigated and
resolved against complainant.

Specifically, a complainant may establish a prima facie case of
reprisal by showing that: (1) she engaged in 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. Whitmire
v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,
2000).  At the 1997 hearing the AJ determined that the agency was not
aware of complainant's protected activity before the decision was made
to terminate her.   Since we find that this conclusion was supported by
substantial evidence, we agree with the AJ that complainant could not
make out a prima facie case of reprisal.

With respect to the allegation that SC terminated complainant in response
to her rejection of his sexual advances, Quid pro quo harassment is
shown when submission to or rejection of unwelcome sexual conduct by an
individual is used as the basis for employment decisions affecting such
individual. 29 C.F.R. §1604.11 (a)(2); Meritor Savings Bank v. Vinson,
106 S.Ct. 2399, 40 EPD 36,159 (1986); Newells v. U.S. Postal Service,
EEOC Appeal No. 01973359 (September 10, 1999).  Accordingly, complainant
must be able to prove two elements: (1) that unwelcome sexual conduct
took place; and (2) a casually connected employment decision was made.
Since the AJ issued a factual finding, which was supported by substantial
evidence in the record, that unwelcome sexual conduct was not proven,
we agree with the AJ that complainant could not prove the first essential
element of her qui pro quo harassment allegation.

Accordingly, and for the reasons set forth above, the Commission discerns
no basis to disturb the AJ's decision.  Therefore, after a careful
review of the record, including complainant's contentions on appeal,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency final decisions.


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

September 14, 2001
__________________
Date








1 The AJ noted that complainant's last face-to-face contact with SC was
on September 19, 1995.

2 However, we find insufficient basis to discredit the chaplain's
testimony that he first spoke to complainant in October 1995, given
his consistent testimony and the fact that he produced a telephone bill
indicating when his first call to complainant took place.