01a41481
09-26-2005
Hodge W. Oliver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Hodge W. Oliver v. United States Postal Service
01A41481
September 26, 2005
.
Hodge W. Oliver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41481
Agency No. 1B-145-0010-00
Hearing No. 160-AO-8748X
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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission reverses the agency's final
order and remands the complaint for further proceedings.
In the Commission's previous Order on appeal, we concluded that this
matter was not ripe for summary judgment because the record was not
complete and because there were issues of credibility to be decided.
We remanded the matter for the gathering of additional statements and
a hearing to reconcile the competing accounts of the facts. Oliver
v. United States Postal Service, EEOC Appeal No. 01A14673 (June 24,
2002).
Instead, the record reflects that the Administrative Judge issued a �Show
Cause Order to Dismiss Complaint.� The AJ, after receiving the parties'
responses, issued a Dismissal Order determining that the complaint failed
to state claim. The agency fully implemented the AJ's Order and this
appeal followed.
First, we address the AJ's issuance of the Show Cause Order. Normally,
an order to show cause is issued when the AJ determines that either
complainant, or the agency, have failed to obey an order of the AJ to
conduct an investigation, or to produce documents or records, and a
sanction may be appropriate. 29 C.F.R. �1614.109 f(3); EEO Management
Directive 110 Chapt. 7-9 (rev. November 1999); see DaCosta v. Department
of Education, EEOC Appeal No. 01995992 (February 25, 2000). There are
several factors to consider in issuing a sanction, none of which are
present in the instant case. See Anderson v. Boston School Committee,
105 F.3d 762 (1st Cir. 1997) (In making a sanction consider the degree
of culpability, prejudice to the opposing among other factors.).
Nothing in the record reveals the need for the AJ's issuance of a
Show Cause Order. Moreover, the agency did not raise the argument that
the complaint failed to state a claim. Indeed, inherent in the AJ's
previous decision granting summary judgment was the conclusion that the
complaint stated a claim of disparate treatment and harassment based on
race and national origin. See Order dated June 22, 2001. Therefore,
it is inappropriate as well as inconsistent for the AJ to now rule
that the complaint failed to state a claim. Nevertheless, complainant
alleged a valid claim of harassment and disparate treatment in terms
and conditions of employment.
For these reasons, we find there is no reasonable basis for the agency to
dismiss the complaint and we vacate the dismissal. There being no basis
for the dismissal, our previous decision still stands. As we previously
found, summary judgment was not appropriate because the record was
insufficiently developed. In our previous decision, we required the AJ to
further develop the record to include statements of other mail processors
regarding the agency's practice of badge-in and out procedures at the time
in question. As the Commission outlined before, additional information
should be gathered regarding requirements for employees to check in and
out with the supervisor of prime letter operations at the time and,
if not, whether the supervisor had a legitimate non-discriminatory
reason for requiring this of complainant. As there has been no further
development of the record evidenced in the file, we will require the
agency to conduct a supplemental investigation as ordered below.
Therefore, after 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 and Remands the matter to the agency. The agency
will comply with the Order as set forth below.
ORDER
Within 60 days of the date this decision becomes final, the agency is
directed to do the following:
The agency will conduct a supplemental investigation to include statements
from mail processors in complainant's unit regarding the agency's practice
for implementing badge procedures in place at the time in question;
in the event there are no mail processors available in complainant's
unit, statements should be obtained from those units with similar badge
procedures;
The agency will also include in any mail processors' statements,
testimony regarding the agency's practice for checking in and out with
the supervisor prime letter operations or other supervisors of mail
processing, and the reasons therefore;
The agency will take a supplemental affidavit from complainant regarding
the 15 incidents of alleged harassment to include information regarding
the involvement of the supervisor of prime letter operations or other
supervisor in these incidents, the date of the incidents and whether the
incident as a whole had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment;<1>
The agency will produce and include in the record, the written harassment
policy in effect at the time in question;
The agency shall submit to the Hearings Unit of the New York District
Office the request for a hearing. The agency is directed to submit a
copy of the complaint file along with the supplemental investigation to
the EEOC Hearings Unit. 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. Thereafter,
the Administrative Judge shall 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 (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
September 26, 2005
Date
1Harassment is actionable only if the incidents
to which complainant has been subjected were "sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and
create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore
Services, Inc., 23 U.S. 75 (1998); Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). To establish a prima facie
case of harassment, complainant must show that: (1) he is a member of a
statutorily protected class and/or was engaged in prior EEO activity;
(2) he was subjected to unwelcome verbal or physical conduct related
to his membership in that class and/or his prior EEO activity; (3)
the harassment complained of was based on his membership in that class
and/or his prior EEO activity; (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 Roberts v. Department of Transportation, EEOC Appeal No. 01970727
(Sept. 15, 2000) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982)). Further, the harasser's conduct is to 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).
When no tangible employment action is taken, the employer may then prove
an affirmative defense comprised of two elements: (1) that the employer
exercised reasonable care to prevent and correct promptly any harassing
behavior, and (2) that the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise. Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton,
524 U.S. 775 (1998).