01986458
01-19-2001
Robert Hurston v. United States Postal Service 01986458 January 19, 2001 . Robert Hurston, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Midwest Area), Agency.
Robert Hurston v. United States Postal Service
01986458
January 19, 2001
.
Robert Hurston,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Midwest Area),
Agency.
Appeal No. 01986458
Agency No. 1-I-551-0014-97
Hearing No. 260-98-7055X
DECISION
Complainant timely initiated an appeal from the final agency decision
(FAD) 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405.<2> Complainant alleges that he was discriminated
against on the bases of disability (hearing impaired) and/or religion
(Wicca) when:
(1) he was ridiculed and harassed by co-workers;
he was not allowed to wear symbols of his religious beliefs; and
management conveyed threats and harassment toward him.
BACKGROUND
Complainant, an Electronic Technician at the agency's St. Paul,
Minnesota facility, filed a formal EEO complaint with the agency on
March 10, 1997, alleging that the agency treated him differently in
the terms and conditions of his employment because of his religion and
his disability. The allegations of religious discrimination involve
complainant's display of religious messages and symbols while on the job.
According to complainant, the agency restricted him from wearing his
religious shirts, jewelry and in the display of a small cauldron.
Complainant argues that members of other religions are not restricted
in the display of their religious messages and symbols and that they
are not warned about offending others.
Through various acts by both agency management and co-workers, complainant
also alleges discrimination based on his hearing impairment. Complainant
reports that he is often demeaned and ridiculed by co-workers because
of his hearing loss. According to complainant, he informed management,
but management failed to take action to prevent the on-going harassment.
As a result of his alleged discriminatory treatment, complainant indicates
that he suffered harm in various ways.
An EEOC Administrative Judge (AJ), at a hearing on the merits of these
allegations, found that complainant established discrimination on
the basis of his disability and religion. Despite the AJ's findings,
the agency, through its FAD, overruled the AJ's findings and concluded
that complainant failed to establish discrimination. In so finding,
the FAD concluded that the ridicule of complainant was not sufficiently
severe and pervasive to unreasonably interfere with his work. The FAD
also concluded that restrictions on complainant's religious symbols were
related to safety concerns. Moreover, the FAD posits that complainant was
not threatened or harassed in violation of anti-discrimination laws. For
the following reasons, we REVERSE the FAD.
ANALYSIS AND FINDINGS
In finding discrimination, the AJ treated complainant's allegations
as distinct acts. After consulting the record, we decide to analyze
complainant's averments as an all-inclusive claim of harassment.
By applying a harassment analysis, we address what we find to be
complainant's paramount concern; namely, an alleged pattern and practice
of disparate treatment. See EEO Counselor's Inquiry Report. Therefore,
the following analysis will apply the AJ's factual findings to the
Commission's authority prohibiting harassment on the basis of religion
and disability.<3>
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 patterned or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14,
1998) (citation omitted). To establish a prima facie case of hostile
environment harassment, a complainant must show that: (1) he belongs to
a statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile,
or offensive work environment. 29 C.F.R. � 1604.11.
Religious Harassment
Title VII prohibits discrimination on the basis of religion. The
Guidelines on Religious Exercise and Religious Expression in the Federal
Workplace provide that agencies may not discriminate against employees
on the basis of religion. 2 Empl. Prac. Guide (CCH) 3903-10 (August
14, 1997). As a general rule, agencies may not suppress employees'
private religious speech in the workplace while leaving unregulated other
private employee speech that has a comparable effect on the efficiency
of the workplace because to do so would be to engage in presumptively
unlawful content or viewpoint discrimination. Id.
The AJ found that the agency restricted complainant's personal
religious expression. Sufficiently supported in the record is that
an agency supervisor instructed complainant not to be so open about
his religious beliefs. (Hearing Transcript (HT) at Page 136). It is
also adequately supported by the record that complainant's co-workers
openly chastised his religious expression, in one instance a co-worker
referred to complainant's religion as �going out East to frolic with
the nymphs.� (HT 128-129). The AJ concluded that the agency further
restricted complainant's religious expression by repeated warnings.
This finding is supported by the record. Complainant testified that
supervisors warned complainant about wearing religious tee shirts in
the workplace, while at the same time, other employees were permitted
to express Christian or Jewish themes on clothing. (HT 43-54). On one
occasion, complainant reports being informed by a supervisor that a
co-worker felt that he was �evil.�<4> The AJ noted that complainant's
supervisor told him that he could not wear a pentagram at work. On the
other hand, complainant's co-workers were permitted to wear symbolic
Christian and Jewish pendants, such as crucifixes and stars of David.
(HT 32).
Disability Harassment
The Rehabilitation Act prohibits discrimination on the basis of
disability. An �individual with a disability� is defined by the statute
as one who (1) has a physical or mental impairment that substantially
limits one or more major life activities, (2) has a record of such
impairment, or (3) is regarded as having such an impairment. Hearing is
a major life activity. 29 C.F.R. � 1630.2(i).
We find that complainant meets the aforementioned definition because he is
regarded as having an impairment that substantially limits his hearing.
29 CFR � 1630.2(g)(3). The factual findings of the AJ support this
conclusion. We note that during the application process and in the
entrance physical exam complainant told agency officials that he had
hearing loss. He also told his supervisors and an agency nurse about
his impairment. An agency nurse told complainant to wear earplugs at
work because the noise could cause more hearing loss and that wearing
a hearing aid at work could hurt his hearing. The record also reveals
that complainant's co-workers and managers treated him as an individual
with a substantially limiting hearing impairment. Accordingly, we find
that complainant is regarded as having an impairment that substantially
limits him in the major life activity of hearing. Furthermore, we
find substantial evidence in the record to support the AJ's conclusion
that complainant was a qualified individual with a disability, in that
complainant's job performance was satisfactory.
We also find that there is substantial evidence in the record to
support the AJ's conclusion that the agency subjected complainant to
discrimination based upon his disability. The specific incidences
referenced by the AJ involve remarks by co-workers questioning
complainant's fitness to perform his job because of his hearing
impairment. The AJ found that a maintenance control clerk repeatedly
verbally abused complainant for not hearing announcements. On one
occasion, the record reveals that the clerk made harassing remarks
on an agency radio system thereby broadcasting these demeaning and
sarcastic remarks throughout the facility. (HT 69-70). The agency took
disciplinary action against the clerk for the broadcasts, but, according
to complainant, the verbal abuse continued off-air. When complainant
complained to management, the verbal abuse escalated. The AJ found
that on another occasion two co-workers confronted complainant and
suggested that he was unfit to work for the agency because he could
not hear. (HT 70). The co-worker made these comments in the presence
of a supervisor, who took no action to stop or prevent the remarks.
(HT 71). The AJ found that complainant was asked by five different
supervisors to remove his ear plugs, which were recommended by an agency
nurse to prevent further hearing loss. (HT 64-65). We find that these
findings are substantially supported by the record.
Harassment Analysis
In determining that a working environment is hostile, factors to
consider are 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
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002
(March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 3, 6.
Applying these principals to the facts of the instant case, we find that
complainant has established that he was harassed by co-workers based
on his religion and disability from December 15, 1996 through March
2, 1997. In reaching this conclusion, the Commission finds that the
agency permitted complainant's co-workers to subject him to a barrage
of humiliating comments and that management unreasonably restricted
complainant's personal religious expression. We further find that the
treatment created an humiliating, intimidating, hostile, and offensive
work environment.
In order to avoid liability for hostile work environment harassment
engendered by a co-worker, the agency must show: (1) that the conduct
complained of did not occur; (2) that the conduct complained of was not
"unwelcome"; (3) that the alleged harassment was not "sufficiently severe
or pervasive" to alter the conditions of the victim's employment; and
(4) that immediate and appropriate corrective action was taken as soon
as the agency was put on notice; or (5) there is no basis for imputing
liability under agency principles. e.g., Gierut v. U.S. Postal Service,
EEOC Appeal No. 01933461 (August 25, 1994); Bouchell v. U.S. Postal
Service, EEOC Appeal No. 01932122 (June 23, 1994).
The agency concedes that the conduct occurred and that the conduct
was unwelcome. We have found infra that the co-workers' conduct was
sufficiently severe and pervasive to alter the conditions of complainant's
employment. The agency contends however, that it acted promptly and
appropriately to prevent further harassment once complainant brought
his complaints to management. We disagree.
The record establishes that complainant went to management at different
times to complain about religious and disability discrimination.
The AJ made a factual finding that, despite management's awareness
about complainant's concerns, no employee was advised not to belittle
complainant because of his hearing loss or his religious beliefs.
Accordingly, the agency is liable for harassment.
Inasmuch as discriminatory harassment was shown to exist, we find that
complainant must be given an opportunity to submit evidence to establish
his claim to compensatory damages and/or attorney's fees. Although
the AJ found such harm to complainant that would support an award of
compensatory damages, we note that the AJ did not conduct a hearing on
the issue of damages.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the agency's
FAD and reinstate the RD's finding of discrimination on the basis of
religious and disability harassment. We remand the issue of complainant's
entitlement to damages to the AJ.
ORDER
The agency is ORDERED to take the following remedial action:
1. The issues of compensatory damages and attorney's fees are REMANDED
to the Hearings Unit of the Milwaukee District Office. Thereafter, the
Administrative Judge shall issue a decision on this issue if 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 within forty (40) days of receipt
of the Administrative Judge's decision. the agency shall submit copies
of the Administrative Judge's decision and the final agency action to
the Compliance Officer at the address set forth below.
2. The agency will provide eight (8) hours of EEO training within the
next four months, with an emphasis on The Guidelines on Religious
Exercise and Religious Expression in the Federal Workplace and the
Rehabilitation Act for all officials involved.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commissions'
Decision. " The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
3. The agency shall post at the agency's St. Paul, Minnesota facility
copies of the attached notice as set forth below.
POSTING ORDER (G0900)
The agency is ordered to post at its St. Paul, Minnesota facility copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
January 19, 2001
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has
occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The U.S. Postal Service, St. Paul, Minnesota facility, (hereinafter
referred to as �facility�) supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The facility has been found to have discriminated against an employee
by harassing him because of his disability and religion. The facility
has been ordered to ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment laws. The facility has
been ordered to provide training, compensatory damages, attorney's fees
and post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 16141 The Rehabilitation Act was amended in 1992 to apply
the standards in the Americans with Disabilities Act (ADA) to complaints
of discrimination by federal employees or applicants for employment.
2 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 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).
4 The supervisor allegedly wanted to warn complainant about the
possibility that the co-worker would file a complaint against him.