0120093406
01-08-2010
Derek S. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Derek S. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120093406
Hearing No. 410-2008-00399X
Agency No. 4H-300-0115-08
DECISION
On August 19, 2009, complainant filed an appeal from the agency's July 16, 2009 final order concerning an equal employment opportunity (EEO) complaint claiming 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 deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
Complainant began working for the agency in November 1997. At the time of events giving rise to this complaint, he worked as a City Carrier at the Civic Center postal facility in Atlanta, Georgia. Some time prior to August 2007, complainant dated a co-worker (C1), and the relationship ended on bitter terms. Complainant had reason to believe C1 was "obsessed" with him, and in September 2007, he requested a transfer in order to get away from her. The transfer was not immediately granted. Complainant then went to a Labor Relations Manager to report that he was being sexually harassed by C1. Consequently his transfer request was granted but not before C1 attempted to assault another co-worker whom she wrongly believed was dating complainant.
On April 11, 2008, complainant filed the instant formal EEO complaint. Therein, complainant claimed that he was harassed on the basis of sex (male) and in reprisal for prior protected EEO activity (arising under Title VII) when was subjected to a hostile work environment. He cites the following incidents as evidence of the harassment:
1. in August 2007, management failed to take action after he complained at a "stand up" meeting that he was being sexually harassed;
2. in September 2007, management did not immediately grant his request for a transfer;
3. in November 2007, he was denied pay for 22 hours of FMLA leave;
4. in December 2007, he was denied pay for 80 hours of FMLA leave; and
5. on an unspecified date after his transfer to the Howell Mill postal facility, management attempted to make him return to the Civic Center facility to sign paperwork.
The agency declined to accept the harassment claim and on May 2, 2008, issued a letter in which it "partially dismissed" all of the incidents with the exception of the one that occurred in December 2007, within 45 days of his EEO Counselor Contact. At the conclusion of the investigation into the denial of pay, 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 raised his objections to the agency's partial dismissal with the AJ assigned to the case. The AJ rejected complainant's request to have the dismissed issues accepted and investigated, stating that he failed to proffer any evidence that he had in fact raised them in a timely manner. The AJ then determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on July 8, 2009. The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that he was subjected to discrimination. Specifically, the AJ found that complainant's request for 80 hours of FMLA leave was approved; due to an administrative error his leave was incorrectly "input;" and that he was ultimately compensated for the time at issue.
CONTENTIONS ON APPEAL
On appeal, complainant argues that summary judgment was inappropriate due to there being genuine issues of material fact in dispute concerning the agency's "administrative error" explanation for the 80 hours of FMLA leave. Specifically, complainant asserted that the matter had also occurred in November 2007, and that the responsible supervisor could not recall ever having made a similar administrative error. Complainant also states that the AJ erred when she refused to reverse the agency's partial dismissal. Complainant argues that all of the incidents should have been investigated because they were timely under the theory of "continuing violation."
ANALYSIS AND FINDINGS
The agency's partial dismissal and the AJ's affirmation of it resulted in the improper fragmentation of complainant's harassment claim. Complainant alleged that the Supervisor and Manager of Customer Services were creating a hostile work environment for him because of his sex and his prior EEO activity when they did not act immediately on his transfer request, denied his requests for FMLA leave and then asked him to return to the facility to sign paperwork rather then sending the paperwork to where he was. However, we decline to remand the complaint for further processing because the record is sufficiently developed for a reasonable fact finder to conclude that the issuance of a decision without a hearing would have been appropriate even if the harassment claim had been completely investigated.
To establish a claim of harassment based on sex or reprisal, complainant must prove that he was subjected to a hostile work environment by establishing that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in complainant's position would have found the conduct to be hostile or abusive. The Supreme Court stated that such conduct must be both objectively and subjectively offensive, such that a reasonable person would find it to be hostile or abusive, and that the victim perceived the environment to be hostile and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Second, complainant must also prove that the conduct was taken because of a protected basis, i.e. in this case, sex or reprisal. Only if complainant establishes both of those elements, does the question of vicarious liability for supervisory harassment present itself.
The critical question in this case is whether any of management's actions were tainted by unlawful animus based on complainant's sex or his prior protected activity. The mere fact that complainant is male and engaged in prior protected activity (when he complained about C1's conduct) is not enough to establish discrimination, and complainant's belief, unsupported by any objective or persuasive evidence, that these were motivating factors, is also insufficient to establish discrimination. There is simply no evidence to support such a finding. Moreover, management did take action after he filed a sexual harassment report with the Labor Relations Manager. Complainant was granted the transfer away from C1, and he was paid for in full for all of the approved FMLA leave he requested. The Commission also declines to find that complainant was subjected to objectively offensive conduct when he was asked to come in and sign paper work to process his pay adjustments. Accordingly, we conclude that the agency did not subject complainant to unlawful harassment. We discern no basis to disturb the AJ's ultimate conclusion that this complaint was appropriate for summary judgment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency's final order.
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
January 8, 2010
__________________
Date
2
0120093406
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013