01a46018
02-15-2005
Carlton Prejean, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carlton Prejean v. United States Postal Service
01A46018
02-15-05
.
Carlton Prejean,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A46018
Agency Nos. 4G-700-0181-03, 4G-700-0073-03
Hearing Nos. 270-2003-09221X, 270-2003-00083X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Modified Clerk at the Broussard
Post Office, Broussard, Louisiana, filed a formal EEO complaint.
Complainant alleged that the agency discriminated against him on the
bases of race (Black), sex, age (born 1957), disability (hand, back,
and neck injury), and reprisal for prior EEO activity when:
on or about December 5, 2002, the agency allegedly failed to take
appropriate action to prevent alleged harassment by a coworker;
(2) on or about December 6, 2002, complainant was allegedly directed
to work outside of his medical restrictions;
(3) on or about October 15, 2002, the agency directed complainant to
check vehicle oil;
(4) on or about July 10, 2003, the agency allegedly failed to take
appropriate action to prevent harassment by a co-worker;
(5) on or about July 10, 2003, the agency allegedly stole 150 hours
from complainant;
(6) on July 17, 2003, management offended him by saying in an ugly
tone of voice, �Will someone get that phone ringing;� and
(7) on September 13, 2003, a manager delivered a very private and
personal letter to complainant.
On October 20, 2003, the agency accepted issues (1) through (5) for
investigation, but dismissed issues (6) and (7) for failure to state
a claim. See 29 C.F.R. � 1614.107(a)(1).
At the conclusion of the agency's investigation of issues (1) through (5),
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ assumed, without deciding, that complainant is a qualified
individual with a disability, but he further found that, since complainant
failed to name any similarly-situated comparators outside of his protected
groups, he did not establish a prima facie case of discrimination on any
of the other alleged bases. The AJ then found that complainant failed to
state a claim with respect to issues (2), (3), and (4). Specifically,
he found that with respect to issue (2), changing two machine ribbons,
and issue (3), checking vehicle oil, no reasonable fact-finder could
infer that the tasks violated complainant's medical restrictions.
With respect to issue (4), alleging mild taunts by a coworker including
a �funny smile� and saying �hu hu,� the AJ determined that the incidents
caused no tangible harm, nor were the incidents described sufficiently
severe or pervasive. As to issue (1), the AJ found that the record did
nor support an inference that management knew of the alleged harassment.
Finally, the AJ dismissed issue (5) as a collateral attack on the Office
of Worker's Compensation Program (OWCP) process. In sum, the AJ found
in favor of the agency as to issues (1) through (5). The agency's final
order implemented the AJ's decision.
On appeal, complainant contends, among other things, that: (1) his
witnesses have not been interviewed; (2) the Snow Award issue has not
been resolved; and (3) he has not been reimbursed for the 150 hours that
were stolen. Complainant also objects to the agency's dismissal of issues
(6) and (7).
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. Furthermore, we find that the agency properly dismissed
issues (6) and (7) in its Partial Dismissal of complainant's complaint.
Issue (1)
In order to prevail on a claim of harassment, the complainant must
show that: (1) he belongs to the statutorily protected classes; (2) he
was subjected to unwelcome conduct related to his membership in those
classes; (3) the harassment complained of was based on his sex; (4) the
harassment had the purpose or effect of unreasonably interfering with his
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 McCleod v. Social Security Administration, EEOC Appeal
No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d
987, 903 (11th Cir. 1982). The harasser's 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).
In the present case, we discern no basis to disturb the AJ's finding of no
discrimination with respect to issue (1). If we assume that complainant
is able to establish a prima facie case harassment based on any of his
alleged protected bases, complainant cannot show that there is a basis
for imputing liability to the agency because the record does not reflect
nor support an inference that management knew of the alleged harassment.
Accordingly, we affirm the AJ's finding of no discrimination as to issue
(1).
Issues (2) and (3)
First, we assume without finding, for the purposes of analysis only,
that complainant is a qualified individual with a disability. Under
the Commission's regulations, an agency is required to make reasonable
accommodation to the known physical and mental limitations of an otherwise
qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
Here, we find that, although the AJ dismissed issues (2) and (3) for
failure to state a claim, these issues state a claim of discrimination
in that complainant is alleging that the agency required him to perform
tasks outside of his medical restrictions, including issue (1), changing
two machine ribbons, and issue (2), checking vehicle oil. We further
find, however, that the AJ properly determined that no reasonable finder
of fact could infer that the tasks of changing two machine ribbons and
checking vehicle oil, violated complainant's medical restrictions.
Indeed, the record reflects that complainant's restrictions include
lifting between 5 to 10 pounds; sitting, standing, walking, and simple
grasping one half hour per day; and driving a vehicle one hour per
day. Based on these specific restrictions, complainant has failed to show
how changing two machine ribbons and checking vehicle oil violated his
medical restrictions. Accordingly, we find that complainant has failed
to prove discrimination as to issues (2) and (3).
Issues (4), (6), and (7)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
106(a).
Where a complaint does not challenge an agency action or inaction
regarding a specific term, condition or privilege of employment, a
claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to the
complainant, determine whether they are sufficient to state a claim. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
With respect to issue (4), alleging mild taunts by a coworker including
a �funny smile� and saying �hu hu,� the AJ determined that the incidents
caused no tangible harm, nor were the incidents described sufficiently
severe or pervasive. The Commission finds that the AJ correctly found
that issue (4) failed to state a claim of harassment because complainant
cannot prove a set of facts to support a finding that the alleged
harassment was significantly severe or pervasive. Likewise, as to issue
(6), alleging that management offended complainant by saying in an ugly
tone of voice, �Will someone get that phone ringing,� and issue (7),
alleging that a manager had delivered a very private and personal letter
to complainant, we find that the agency properly dismissed these two
issues for failure to state a claim since the two incidents taken together
were again not sufficiently severe or pervasive to constitute harassment.
Issue (5)
Finally, the AJ dismissed issue (5) as a collateral attack on the OWCP
process. The Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30,
1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 25, 1993). Here, complainant alleged that, on or about
July 10, 2003, the agency allegedly stole 150 hours from complainant.
The proper forum for complainant to have raised his challenges to actions
which occurred during the OWCP process was in that process itself.
It is inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the OWCP process.
Therefore, based on our de novo review of the entire record in this case,
the Commission finds that the AJ's decision accurately sets forth the
facts giving rise to the complaint. Finally, we note that, although
complainant alleges that the Snow Award issue has not been resolved,
he did not identify that issue as part of his complaint.
The Commission concludes that, construing the evidence to be most
favorable to complainant, complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes. Therefore, we find that the
AJ's decision, finding no discrimination was proper, and 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
____02-15-05______________
Date