0120073818
03-18-2010
Benjamin Ivey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Benjamin Ivey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120073818
Hearing No. 110-2004-00381X
Agency No. 1H-301-0004-04
DECISION
On September 7, 2007, complainant filed an appeal from the agency's
August 9, 2007 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. For the following reasons, the
Commission AFFIRMS the agency's final order finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Handler at the agency's Atlanta Processing and Distribution
facility in Hapeville, Georgia. On April 6, 2004, complainant filed
an EEO complaint alleging that in September and October 2003, he was
subjected to a hostile work environment on the basis of disability
(post-traumatic stress disorder) when:
1. A female friend told complainant that he needed to get an AIDS
test and that he did not even know his oldest daughter;
2. He overheard two co-workers talking about him while in the
bathroom stating that a co-worker (CW1) spread rumors that he had given
a woman in his car a lot of money for nothing and that she got out of
his car and said that he was stupid;
3. A supervisor (S1) continues to block him from getting his power
equipment licenses because he walked out of class approximately three
years ago;
4. S1 shook CW1's hand, patted him on the back, looked toward
complainant's section, and laughed which encouraged CW1 to continue to
spread rumors about him;
5. CW1 told co-workers on the dock that complainant was stupid and
that complainant gave money to prostitutes in his community for doing
nothing and that a friend with AIDS jumped in his car and stuck him with
a needle;
6. CW1 told people in complainant's community where he lived that
he was stupid and then told people at the Post Office that he was so
stupid that he was chasing prostitutes;
7. Complainant went to his window at home, looked out, and saw and
heard a neighbor tell another neighbor in a loud voice that the people
complainant worked with said that he is stupid and has AIDS;
8. Another co-worker (CW2), was preaching or speaking to several
other co-workers waiting to clock out saying that complainant was stupid
and saying things about complainant's family such as: his daughter did
not know him and that his sister said he was stupid; and
9. CW2 told a truck driver that complainant was stupid after
complainant had talked to the truck driver.
Initially, the agency dismissed the complaint for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1). We reversed that determination
and remanded the matter to the agency for further processing in our
decision in Ivey, Jr. v. U.S. Postal Service, EEOC Appeal No. 01A45700
(May 3, 2006). At the conclusion of the investigation, complainant was
provided with a copy of the report of investigation and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing and the AJ held a hearing on
April 24 and 25, 2007.
At the completion of complainant's case-in-chief, the agency moved for a
"directed verdict" which the AJ granted. In her July 24, 2007 decision,
the AJ assumed arguendo that complainant was an individual with a
disability as defined under the Rehabilitation Act and found that there
was no evidence in the record that any of the alleged harassing incidents
occurred. Further, the record indicated that each time complainant
reported the alleged incidents to management, the agency conducted
investigations into the allegations. The AJ noted that although no
evidence was ever found to substantiate complainant's claims, the agency
took prompt, remedial action by ordering the alleged harassers to cease
and desist if they were committing any of the acts alleged. As a result,
the AJ held that complainant failed to establish a prima facie case of
a hostile work environment on the basis of disability and granted the
agency's motion for summary judgment. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the record clearly reflects that he was
subjected to harassment which was severe and pervasive and which altered
the conditions of his employment. Further, complainant alleges that after
once he reported the harassing incidents, the agency did not do enough to
curtail the harassment. Accordingly, complainant requests that we reverse
the agency's final order. In response, the agency asserts that the AJ's
factual findings are supported by substantial evidence and complainant
has presented no evidence showing that the findings should be reversed.
Further, the agency argues that the record does not establish that
complainant's workplace was permeated with discriminatory intimidation,
ridicule, and insult. As a result, the agency requests that we affirm
the final order.
ANALYSIS AND FINDINGS
As an initial matter, the Commission notes that there is no mechanism
for a "directed verdict" in the EEOC hearing process. However, under
29 C.F.R. � 1614.109(e), the AJ has the power to regulate the conduct of
the hearing, limit the number of witnesses where the testimony would be
repetitious, and exclude irrelevant evidence. We find nothing improper
in the AJ's actions prior to the hearing, during the hearing, or in
her issuance of a decision in favor of the agency after complainant
presented his case and without hearing the testimony of any witnesses
on behalf of the agency.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently severe or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
A single incident or group of isolated incidents will generally not be
regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Whether the harassment is sufficiently severe to trigger a violation of
the anti-discrimination laws must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers'
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
An agency is responsible for acts of harassment in the workplace
by complainant's co-workers where, the agency knew (or should have
known) of the conduct, and failed to take immediate and appropriate
corrective action. Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999); see
Policy Guidance on Current Issues of Sexual Harassment (March 19, 1990);
Villanueva v. Department of Homeland Security, EEOC Appeal No. 01A34968
(August 10, 2006). .
After a review of the record, we find the evidence supports the
AJ's finding of no discriminatory harassment. The record reveals no
corroborating evidence that any of the alleged incidents occurred.1
Further, the AJ noted that of the 10 co-workers who testified, only one
had any knowledge of any comments made about complainant having AIDS or
had any knowledge of his mental condition. Hearing Transcript Vol. 2
(HT2) at 44. Even so, the testimony of that co-worker was too vague
and referenced incidents too common in the workplace to be considered
harassment. Id. at 45. Assuming, without deciding, that complainant
is an individual with a disability, and that the incidents occurred as
alleged, we agree with the AJ that the agency took appropriate measures
to address the concerns raised by complainant. The record reveals
that each time complainant complained about a co-worker's conduct,
management addressed the incident, instructed the alleged harassers to
cease and desist, and received no further reports of similar incidents.
Hearing Transcript Vol. 1 (HTI) at 86-89; HT1 at 98-99. Accordingly,
we find no basis to impute liability to the agency.
CONCLUSION
We AFFIRM the agency's final order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 18, 2010_______
Date
1 With respect to the discrete incident concerning a supervisor who
allegedly blocked complainant from getting his power equipment license,
the record indicates that the delay in getting the license stemmed from
complainant's action in leaving the class and not any discriminatory
animus. Complainant has since obtained the license at issue.
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0120073818
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073818