01993884
12-08-1999
Robert L. Council, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Robert L. Council, )
Complainant, )
) Appeal No. 01993884
v. )
) Agency No. 1-D-234-0027-98
William J. Henderson, )
Postmaster General, ) Hearing No. 120-98-9946X
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (�FAD�) concerning his complaint of employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> In his complaint, complainant alleged that
the agency discriminated against him on the bases of race (Black) when it
failed to protect him against harassing co-workers in the same manner as
it protected White employees. We accept this appeal in accordance with
the provisions of EEOC Order No. 960.001. For the following reasons,
we AFFIRM the agency's decision as clarified herein.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Limited Duty Clerk at the agency's Norfolk, Virginia Mail
Processing Plant (�facility�). On January 27, 1998, complainant and
a co-worker (�CW1�) (Black) had a heated argument regarding the use
of a workstation. Complainant perceived CW1's actions as threatening.
As a result, he reported the incident to his supervisor (�SV�) (�Black�)
and filed criminal action against CW1. SV determined that CW1 had used
profanity and verbally abused complainant, but did not find that CW1
threatened complainant. On February 19, 1998, SV issued CW1 a Letter
of Warning (�LOW�) for improper conduct. The agency stated that their
union agreement requires corrective and progressive discipline and
since CW1 did not have any other official discipline in his record,
he was issued the LOW as a first step discipline.<2>
Complainant stated that on October 20, 1998, a second co-worker (�CW2�)
(White) slapped his wrist as he prepared to pick up mail near CW2's
workstation. The agency stated that it did not discipline CW2 for the
incident because CW2 denied the incident and an investigation failed
to demonstrate that CW2 struck complainant. Complainant noted that
after each of the above-described incidents both CW1 and CW2 continued
to harass him by constantly glaring and staring at him. He stated the
management never took action to prevent the harassment. Complainant
also submitted numerous other statements from other facility employees
describing incidents where CW1 or CW2 acted in an inappropriate or
harassing manner toward others at the facility. Complainant noted that
even though management officials knew of these individuals' harassing
conduct, they took no action.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on May 6, 1998.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (�AJ�). After receiving the agency's Motion for
Summary Judgment and determining that there was no genuine dispute of
material fact, the AJ issued a Recommended Decision (�RD�) Without a
Hearing, on February 25, 1999, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of harassment based on race. The AJ noted that complainant established
that he belonged to a protected group and was subjected to unwelcome
conduct by CW1 and CW2. However, the AJ found that complainant failed
to demonstrate that the conduct resulted because of complainant's race.
The AJ stated that the fact that all the individuals involved were Black
further curtailed complainant's ability to establish an inference of
race discrimination.<3> The AJ noted that the evidence revealed that
CW1 and CW2 were equal opportunity harassers meaning that they engaged
in harassing both Black and White co-workers. Finally, the AJ found
that complainant failed to establish disparate treatment discrimination
because the agency, in general, failed to take any action against these
individuals and did not act to protect Whites any more than it protected
Blacks.
On appeal, complainant contends that the AJ erred by overlooking
management's blatant refusal to protect employees from the harassing
acts of CW1 and CW2. The agency provides no response to the appeal.
ANALYSIS
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) (citing
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). The Supreme
Court has stated that, �[c]onduct that is not severe or pervasive enough
to create an objectively hostile work environment - an environment that
a reasonable person would find hostile or abusive - is beyond Title
VII's purview.� Harris v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993). 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,
510 U.S. at 21; EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
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.
Humphrey v. United States Postal Service, Appeal No. 01965238 (October
16, 1998); 29 C.F.R. � 1604.11. Evidence of the general work atmosphere,
involving employees other than the complainant, also is relevant to the
issue of whether a hostile environment existed in violation of Title
VII. Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in
relevant part and rev'd in part, Meritor Savings Bank v. Vinson, 477
U.S. 57 (1986).
After a careful review of the record in its entirety, we find that
complainant failed to establish a prima facie case of harassment based
on race. While he presents evidence that he encountered unwelcome conduct
from CW1 and CW2, nothing proffered by complainant demonstrates that
either individual's conduct involved his race. Unless complainant ties
the harassment to a protected basis, he cannot succeed in his EEO claim.
See Jackson v. City of Kileen, 654 F.2d 1181, 1186 (5th Cir. 1981)
("Title VII is not a shield against harsh treatment at the workplace").
Therefore, we discern no basis upon which to overturn the AJ's no
harassment finding.
As for complainant's contention that the agency provided greater
protection against harassment to its White employees, we find that the
evidence does not support a finding of disparate treatment. The only
support for this contention comes from evidence that CW1 was instructed
to stay out of a certain work area after two White co-workers complained
about CW1's presence in the work area. We find that CW1 was not asked to
stay out the area because he was harassing the individuals but because
he created a safety hazard by being present in the work area. As a
result, management's action in that matter did not address harassment.
In fact, the only instance where management took disciplinary action for
inappropriate behavior was when CW1 used abusive language to complainant
on January 27, 1998.
Accordingly, we AFFIRM, as clarified above, the agency's final decision
which adopted the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 the decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive the decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
December 8, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
1 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Subsequently, CW1 filed a union grievance and the LOW was reduced to
a Letter of Official Discussion.
3 We note that this is an incorrect statement of law. The Supreme
Court has rejected any conclusive presumption that individuals will not
discriminate against members of their own protected group. Castaneda
v. Partida, 430 U.S. 482, 499 (1977) (stating that "[b]ecause of the many
facets of human motivation, it would be unwise to presume as a matter of
law that human beings of one definable group will not discriminate against
other members of their group."). However, for reasons stated below,
we find that this incorrect presumption by the AJ does not affect the
outcome of this case. We also note that, contrary to the AJ's finding,
CW2 is in fact White and not Black.