0120093499
11-17-2011
Henry M. Marbly, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Henry M. Marbly,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120093499
Hearing No. 471-2007-00048X
Agency No. 4J-481-0026-06
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s November 20, 2008 final order concerning
his 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. For the following
reasons, the Commission VACATES the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Career Technician at the Agency’s Post Office in Highland Park,
Michigan. On March 15, 2006, he filed an EEO complaint alleging that the
Agency subjected him to sexual harassment and a hostile work environment
on the bases of sex (male), religion, and in reprisal for prior protected
EEO activity when:
1. His supervisor (S1) told him to drop his prior EEO complaint;
2. The union steward swung an object (which appeared to be a bat) and
stated “I would like to bust you in your head” and “I want to
knock your brains out;”
3. The union steward stated that Complainant “is the sperm that run
down his daddy’s leg;” that Complainant “is married to a dog and
his kids are a litter” and asked if Complainant is a “pastor or a
bastard;” and,
4. S1 encouraged Complainant’s co-workers to write untrue statements
about him in order to have him removed from the Agency.
The Agency initially dismissed the complaint for failure to state a claim.
The Agency determined that management had the right to direct employees
in the performance of their duties in order to maintain efficient service
and thus, Complainant had failed to show that he had suffered a tangible
employment action. Complainant appealed and, in Marbly v. U.S. Postal
Serv., EEOC Appeal No. 01A62880 (Oct. 19, 2006), the Commission reversed
the dismissal and remanded the complaint for further processing.
At the conclusion of the investigation, the Agency provided Complainant
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. Over Complainant’s objections, the AJ
assigned to the case granted the Agency’s motion and issued a decision
without a hearing on November 7, 2008.
The AJ concluded that the alleged incidents were isolated in nature
and did not constitute a hostile work environment. Even if considered
sufficiently severe or pervasive, the AJ found that Complainant failed to
bring claims (2) and (3) to the attention of S1 or anyone in management.
In addition, as to claim (1), the AJ found no evidence that S1 ever
advised Complainant to drop his EEO complaint. Regarding claim (4),
the AJ found no evidence that S1 encouraged Complainant’s co-workers
to submit false statements. Instead, the AJ determined that Complainant
was involved in an incident with another co-worker and, when it came
to S1’s attention, she requested statements from Complainant and the
co-worker to investigate the issue. The AJ found that this was the only
incident involving Complainant that was brought to S1’s attention,
and she promptly investigated it. Complainant did bring the incident
involving the union steward swinging something at him to the attention
of a postal inspector. The postal inspector conducted an investigation
to determine whether the union steward should be disciplined; however,
the investigation did not substantiate Complainant’s allegation.
The AJ found that the Agency took prompt, remedial action to investigate
and correct all of the incidents brought to management’s attention.
Complainant contended that S1’s work station was in the middle of
the workroom floor therefore she must have been aware of the hostile
work environment. The AJ found that this was not evidence that she
was aware of the conduct Complainant alleged nor was it proof that she
failed to take prompt, remedial action. As a result, the AJ held that
Complainant was not subjected to sexual harassment or a hostile work
environment as alleged. The Agency subsequently issued a final order
adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in issuing a decision
without a hearing. Specifically, Complainant maintains that on many
occasions, he would ask for an unscheduled day off, and S1 would respond
“you know what you have to do.” Further, Complainant argues that S1
turned her head when things escalated between him and his co-workers.
Complainant contends that S1 had to have been aware of the hostile
work environment he experienced because her desk was in the middle of
the workroom floor with the carriers. Finally, Complainant points to
witness statements indicating the hostility he suffered and management’s
refusal to stop the harassment. Accordingly, Complainant requests that
the Commission reverse the final order.
ANALYSIS AND FINDINGS
The Commission must first determine whether it was appropriate for
the AJ to have issued a decision without a hearing on this record.
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.
After careful review of the record and consideration of the arguments
presented on appeal, the Commission finds that a decision without a
hearing was inappropriate in this case. Genuine issues of material fact
exist that can only be resolved through a hearing. In particular, the AJ
credited S1’s denial of any knowledge regarding the issues Complainant
alleged while not crediting Complainant’s and other witnesses’
statements in the record indicating that S1 was aware of the behavior
and ignored it. Further, Complainant claimed that S1 withheld leave
and other privileges in exchange for dropping his EEO complaint while S1
contended that Complainant used his EEO complaint to negotiate when she
attempted to discipline him. Thus, there are unresolved issues which
require an assessment as to the credibility of management officials,
co-workers, and Complainant.
The Commission concludes that the AJ's finding of no discrimination could
not be reached except by resolving significant conflicting evidence, an
action that is not appropriate in a grant of a decision without a hearing.
In light of the disputed issues of material fact on the instant record,
issuance of a decision without a hearing was not warranted under 29
C.F.R. § 1614.109(g).
CONCLUSION
After a careful review of the record, including Complainant's arguments
on appeal, the Agency’s response, and arguments and evidence not
specifically discussed in this decision, the Commission VACATES the
Agency’s final order for the reasons set forth in this decision.
The Commission REMANDS Complainant’s complaint as defined above to
the Agency for further processing in accordance with this decision and
the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC's Indianapolis
District Office the request for a hearing, as well as the complaint
file, within thirty (30) calendar days of the date this decision becomes
final. The Agency shall provide written notification to the Compliance
Officer at the address set forth below that the complaint file has been
transmitted to the Hearings Unit of the Indianapolis District Office.
Thereafter, the Administrative Judge shall hold a hearing and issue a
decision on the complaint in accordance with 29 C.F.R. § 1614.109, and
the Agency shall issue a final action in accordance with 29 C.F.R. §
1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (Nov. 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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
November 17, 2011
Date
6
0120093499
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013