0120150223
03-16-2017
Otis B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Otis B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120150223
Hearing No. 532-2013-00058X
Agency No. 4C-440-0174-12
DECISION
On October 18, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 18, 2014, 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 AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing which found that Complainant did not demonstrate that he was subjected to discrimination, harassment or a constructive discharge.
ISSUES PRESENTED
The issues presented in this case are whether the AJ's decision to issue a decision without a hearing was correct; and whether Complainant established that he was subjected to discrimination and a hostile work environment when he was called a "boy" by a coworker; was denied a schedule change; and was subjected to a constructive discharge.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee (PSE) at the Agency's Madison Post Office in Madison, Ohio. He had previously been assigned to work at the Burton Post Office but due to a staffing shortage he was assigned to Madison part-time. Complainant's first day at the Madison office was July 9, 2012. On July 10, 2012, Complainant had a verbal altercation with a White, female coworker. The coworker saw Complainant exiting the facility through an entry door and upon seeing this, she loudly yelled at Complainant to exit the building through the proper door. Complainant responded that she was not his boss and that she should not yell at him. The coworker thereafter found a supervisor and reported the incident to him. While reporting the incident, the coworker referred to Complainant as a "boy." She indicated that someone "needed to go talk to that boy," and that "[h]e don't know who he messing with." Later, the supervisor told Complainant that the door was an issue for the coworker. He also informed Complainant that the coworker should not have been disrespectful to him and that he would investigate the matter.
Complainant then reported the verbal altercation to the Postmaster. After an initial investigation, the Postmaster informed Complainant that the coworker had called him a "boy" and that there may have been a racial component to her remark. He also indicated that a formal investigation was going to be conducted and that he needed to follow the process before he could issue discipline.
The day after the incident, July 11, 2012, Complainant, who had raised the issue about transferring out of the Madison office, raised the issue of transfering again.2 Complainant told the Postmaster that he felt that the Madison Post Office was a hostile environment for him and that he would voluntarily reduce his hours if he could leave Madison. The Postmaster denied Complainant's request and told him that he needed to forget the incident.
On July 12, 2012, Complainant notified the Agency that he was going to resign. He resigned on July 13, 2012. On July 18, 2012, the Postmaster conducted a pre-disciplinary interview concerning the incident. The coworker indicated that she did not realize that the use of the word "boy" was a racial slur and she denied being a racist. The coworker offered to apologize to Complainant. She later apologized and she and Complainant shook hands. On August 7, 2012, the coworker received a Letter of Warning for "Conduct Unbecoming of a Postal Employee" for her use of the word "boy" on July 10, 2012.
On November 13, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) and subjected him to a hostile work environment when:
(1) On July 10, 2012, a White co-worker, made a racially biased comment to him;
(2) On July 11, 2012, the Postmaster denied his request for a transfer or reduced work hours; and
(3) On July 13, 2012, he was forced to resign from his PSE Clerk position at the Madison Post Office.
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 Administrative Judge. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's July 16, 2013, motion for a decision without a hearing and issued a decision without a hearing on September 11, 2014. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination, harassment, or a constructive discharge as alleged.
The AJ indicated that assuming arguendo that Complainant established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the Agency took prompt action regarding the coworker's statement and she was disciplined after an investigation; and his request for a transfer was denied because there was an employee shortage at the Madison location. With respect to Complainant's hostile work environment claim the AJ determined that the Agency took prompt effective action regarding the incident, and that the matter was not so severe or pervasive to have established a hostile work environment as it was a one-time statement. Finally, the AJ found that Complainant did not show that he was subjected to a constructive discharge because there was no evidence that he was subjected to conditions that would have forced a reasonable person to feel compelled to resign.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Ohio Unemployment Office found on appeal that Complainant "quit work with just cause." The Unemployment Office found that Complainant "should not be required to continue working in a hostile and discriminatory environment."
Further, Complainant argues that he disputes some of the facts stated in the final decision. First, he maintains that he did not tell his coworker to mind her own business. He also maintains that while he shook her hand he did not say that he accepted her apology. He also did not say that he did not want to work at the Madison location because he had to wake up at 3:00 a.m.; and finally he asserts that his great grandmother's death had nothing to do with him being referred to as "boy." The Agency did not provide a brief.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
We 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). In the instant case we find that all of the prerequisites were met and there are no material facts at issue. We find the AJ properly issued a decision without a hearing.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant did not demonstrate that he was subjected to a hostile work environment. Initially, we find that although the comment was clearly inappropriate, it was not severe or pervasive enough to establish a hostile work environment. Moreover, we note that by the time Complainant was made aware that the comment had been made, management had already launched an investigation that promptly and effectively addressed the coworker's conduct. Complainant has not offered any persuasive evidence that he was subjected to other conduct that could be classified as hostile or that the coworker ever said anything to or about him like that again.
We also find that even if we assume arguendo that Complainant established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for denying Complainant's transfer request, i.e., his request for a transfer was not approved because there was a staffing shortage. We find that Complainant did not demonstrate that the Agency's articulated reason was a pretext for discrimination.
Finally, with respect to Complainant's constructive discharge claim, we note that the central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a Complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the Complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the Complainant created the intolerable working conditions; and (3) the Complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Upon review, we find that Complainant failed to show that the working conditions were intolerable. In fact, the record shows that Complainant was only at the Madison office for three days before he resigned. As noted above, we do not find that the two matters that took place on July 10 and 11 were either discriminatory or rose to the level of unlawful harassment. The Agency took immediate and effective action with regard to the comment made about Complainant. With respect to his request to transfer, the Agency denied his request but told him that as soon as they were able to hire again Complainant's request would be considered. Based on the above, we do not find that Complainant established that his resignation constituted a constructive discharge.
On appeal, Complainant argued that the Ohio State Unemployment Office found that he left his job for cause and that he should not have been subjected to a discriminatory and hostile work environment and, therefore, he was entitled to unemployment benefits. We find the decision of the Ohio State Unemployment Office is not binding here. Complainant has the burden to prove his case. Based on our review of the record, he has simply not done so here.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which found that Complainant did not demonstrate that he was subjected to discrimination, harassment, or a constructive discharge.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__3/16/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Prior to the July 9, 2012, incident, Complainant met with the Postmaster to request a transfer out of Madison. Complainant indicated that he did not like having to report to work in so many locations and that he was required to wake up at 3:00 am to get to the location. He also reported that his great grandmother had recently died. Complainant was told to "hang in there." He was told that it would be rough for a few weeks but that after additional staff was secured, things would get better.
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