01992028
03-26-2002
LaVaughn G. Flinn v. United States Postal Service
01992028
03-26-02
.
LaVaughn G. Flinn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01992028
Agency No. 4-I-530-0046-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the basis of race (Black) when on January 8, 1998, she was
harassed by a coworker and had a verbal confrontation with this coworker
and another employee.
The record reveals that during the relevant time, complainant was
employed as a PS-5 permanent light duty city carrier at the agency's
Hilltop Station, Milwaukee, Wisconsin. On January 8, 1998, while in
the position of Acting Supervisor, complainant asked a clerk (Black)
(C1) to help out at the window. The record reveals that five to eight
minutes later, complainant noticed that C1 was not at the window.
She asked C1 in a louder voice to go to the window. He indicated that
he had not heard her the first time. Complainant then swore at him.
C1 yelled back, while at the same time, another clerk (White) (C2)
slammed down his mail and approached complainant. The record reveals
that C2 came within three to four inches of complainant's face and began
swearing at her. Complainant maintains that C2's behavior was part of
a pattern of harassment based on her race which had been reported to
management without any resolution.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on March 16, 1998.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a FAD from the agency. When complainant failed
to respond within the time period specified in 29 C.F.R. � 1614.108(f),
the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima face case of discrimination based on race because complainant failed
to identify a comparator who was treated more favorably since everyone
involved in the confrontation was given an official job discussion.
The FAD is silent regarding complainant's claim of harassment.
The Commission finds that there is insufficient evidence to make a
determination regarding this case. Upon our review, we find that
the agency failed to investigate complainant's complaint of ongoing
harassment by her coworker. We note, that in order to prevail on a
harassment claim, a complainant must show that she was subjected to
harassment because of discriminatory factors. Harassment will be found
if the discriminatory conduct is so severe or pervasive that it created
a hostile work environment. An abusive work environment exists "[w]hen
the workplace is permeated with 'discriminatory intimidation, ridicule,
and insult' that is 'sufficiently severe or pervasive to alter the
conditions of the victim's employment...''' Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993).<1>
We find the agency has failed to provide sufficient evidence to support
its final decision since the FAD did not address complainant's claim of
an ongoing pattern of harassment by C2. We find that the investigator
had reason to pursue this line of questioning based on complainant's
testimony that she reported several incidents to management without
any resolution. Based on 29 C.F.R. � 1614.108(b) and in accordance
with instructions contained in Commission Management Directives, the
agency shall develop an impartial and appropriate factual record upon
which to make findings on the claims raised by the written complaint.
An appropriate factual record is one that allows a reasonable fact finder
to draw conclusions as to whether discrimination occurred.
Accordingly, the agency's decision is VACATED and the case is REMANDED
to the agency for a supplemental investigation in accordance with the
Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
(1) the investigator shall obtain from complainant, management and
agency records any documentation regarding the complainant's claims of
harassment by C2.
(2) the investigator shall obtain testimony from complainant specifically
elaborating the particular manner in which she was harassed, including
dates, times, employees involved, names of managers incidents were
reported to, and witnesses present. Testimony shall be obtained from the
appropriate agency officials and witnesses responding to complainant's
complaint.
(3) the agency shall ensure that the investigator completes a supplemental
investigation within sixty (60) calendar days of the date this decision
becomes final. Thereafter, the agency shall provide the complainant,
within thirty (30) calendar days from the date the agency completes the
supplemental investigation, a copy of the supplemental investigative
report. Complainant shall be allowed twenty (20) calendar days from
his receipt of the supplemental investigative report to provide the
agency a response to the report. The agency shall then take any action
appropriate and consistent with complainant's response, and issue a new
final agency decision with appeal rights within thirty (30) calendar days
of the agency's receipt of complainant's response or, if complainant
fails to respond, within thirty (30) calendar days following the last
day complainant would have been permitted to respond. Copies of the
completed supplemental investigation and new final agency decision must
be submitted to the Compliance Officer, as referenced below.
In accordance with Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-23 (November 9, 1999), the agency
shall give priority to this case in order to comply with the time frames
contained in this Order. The Office of Federal Operations will issue
sanctions if it determines that an agency is not making reasonable
efforts to comply with a Commission order to investigate a complaint.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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
____03-26-02______________
Date
1 In assessing allegations of harassment, the Commission examines
factors such as the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance.
See Harris. Usually, unless the conduct is severe, a single incident
or group of isolated incidents will not be regarded as discriminatory
harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th
Cir. 1982). See Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors (June 18, 1999).