01a13958
08-15-2003
Paul Nelligan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul Nelligan v. United States Postal Service
01A13958
August 15, 2003
.
Paul Nelligan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13958
Agency No. 4B-010-0051-97
Hearing No. 160-99-8214X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his 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 remands
the agency's final order.
The record reveals that during the relevant time, complainant was employed
as a Supervisor, Customer Service, EAS-16 at the agency's Northampton
Post Office in Northampton, Massachusetts. Complainant sought EEO
counseling and subsequently filed a formal complaint on August 11,
1997, alleging that he was subjected to harassment on the bases of race
(Caucasian), sex (male), and reprisal for prior EEO activity when
he was (1) treated disrespectfully; (2) berated in the presence of
other employees; (3) referred to as stupid; and (4) threatened with
disciplinary action if he used personal time. Complainant further
alleged harassment when his supervisor (5) attempted to influence him
to falsify official postal reporting information; (6) canceled the Route
Examiner Training that complainant was scheduled to attend; (7) informed
him that he was permanently reassigned; (8) sexually assaulted him; (9)
withheld his pay stub on June 13, 1997; (10) charged him leave without
pay during an extended absence; and (11) issued complainant a Letter
of Warning regarding attendance.<1> The agency accepted the complaint
for investigation.
At the conclusion of the investigation, complainant was provided
a copy of the investigative file and requested a hearing before an
EEOC Administrative Judge (AJ). After examining the case file, the AJ
determined that there were no material facts in dispute and therefore
issued a decision without a hearing in which he found no discrimination.
The agency adopted the AJ's findings. Complainant appealed.<2>
Upon review, we find that the AJ erred when he issued a decision without
a hearing in this case. Regarding the name-calling and derisiveness to
which complainant was subjected and the pressure from his supervisor
to falsify postal forms, the AJ ruled that even if true, it would not
constitute harassment because complainant did not show how these actions
altered a condition of his employment or that they were sufficiently
severe or pervasive. This Commission disagrees. In his affidavit,
complainant alleged that his supervisor constantly called him names
over a period spanning several months, including once stating something
to the effect of �you all look alike anyway� when complainant tried to
explain who he was.<3> Complainant also alleged that his supervisor's
nicknames for him amused his co-workers, and even prompted them to adopt
those nicknames when referring to him. Complainant further alleged his
supervisor often berated him in front of his co-workers, but did not
treat his Black counterpart, also a Customer Service Supervisor, in the
same manner. Complainant stated that his supervisor's actions undermined
his control as a supervisor, thereby affecting his work performance.
Complainant alleged that he was frequently pressured to falsify postal
forms and threatened with disciplinary action if he used personal time;
behavior to which his Black counterpart was not subjected. We note that
the evidentiary record contains affidavits from two co-workers which
corroborate complainant's allegations. It is the Commission's view that
these allegations, if true and in the aggregate, are sufficient to meet
the standards of harassment.
The AJ further ruled, as to the issue of reassignment, that nothing
in the record indicates that complainant was permanently reassigned.
Complainant contended, however, that he was permanently reassigned
and assigned some of the duties of his Black counterpart in an attempt
to accommodate the latter's career development training. The AJ was
correct in noting that the record is void of evidence of complainant's
reassignment. But complainant alleged that his supervisor reassigned him
verbally on April 4, 1997, and he has not returned to work since that day.
Implicitly, on appeal, complainant argues that there is no record of his
reassignment because he did not return after being informed about it.
Looking at the evidence in the light most favorable to the complainant,
this Commission finds that a decision without a hearing should not have
been issued regarding this and other issues.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 7, page 7-1; see also
29 C.F.R. � 1614.109(e). �Truncation of this process, while material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge, improperly deprives complainant of a full and fair
investigation of her claims.� Mi S. Bang v. United States Postal Service,
EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). In summary, there are simply too many unresolved
issues which require an assessment as to the credibility of complainant
and the various management officials, and co-workers, for judgment as
a matter of law to have been rendered in favor of the agency.
After a 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 case to the agency to take action in accordance
with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. 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
August 15, 2003
__________________
Date
MEMORANDUM
TO: New York District Office
Hearings Unit
THROUGH: Spencer Lewis
Director, New York District Office
FROM: Carlton M. Hadden, Director
Office of Federal Operations
RE: Paul Nelligan v. United States Postal Service,
EEOC Appeal No. 01A20277
Enclosed is a decision requiring that the referenced complaint be
assigned to an Administrative Judge for the scheduling of a hearing.
We request that the Administrative Judge notify the Compliance Division
of the Office of Federal Operations after a decision has been issued.
If you have any questions regarding the further processing of this
complaint, please contact Robert Barnhart, Director of Compliance and
Control at (202) 663-4525.
1Complainant later withdrew allegation (9).
2In the brief submitted in support of the appeal, it is clear that
complainant is not appealing the agency's finding regarding the allegation
of sexual assault. Accordingly, that issue will not be addressed further.
3According to complainant, his supervisor referred to him as �stupid,�
�Nelligan-Man� and �Jean.�