0120110095
02-08-2011
Robert Williamson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Robert Williamson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120110095
Hearing No. 550201000102X
Agency No. 4F940010409
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's June 14, 2010 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.
BACKGROUND
Complainant alleged that the Agency subjected him to hostile workplace
discrimination on the basis of reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when: on April 24, 2009,
he was physically assaulted.
The record reveals that Complainant had been the president of the San
Francisco American Postal Workers Union ("APWU") for the past 24 years
in which capacity he is required to regularly enter various postal
facilities. Although the relevant collective bargaining agreement
provides that union representatives are to give reasonable notice to
the Agency of their intention to visit one or another facility, this
provision has been honored more in the breach than in the observance.
On April 24, 2009 at approximately 11:00 p.m., Complainant entered
unannounced the workroom floor at the San Francisco Processing and
Distribution Center ("P&DC"). Initially, the Tour 3 manager asked
Complainant why he was on the workroom floor, he telling her that it
did not involve Tour 3 employees. Shortly thereafter, Complainant
was approached by another manager, and outside of the presence of
other witnesses, became engaged in an altercation that ended up with
Complainant on the workroom floor. The postal police were called and
a report was taken. The following morning, Complainant was examined at
an emergency room and was diagnosed as having a concussion. On the same
day, Postal Inspectors were requested by the Plant Manager to investigate
the altercation. On April 28, 2009, Complainant was notified that his
"badge access has been restricted pending the investigation of the April
24, 2009 altercation" and that he was "not to enter any Postal facility
or Postal employee parking lot until further notice." Also on April 28,
the manager involved in the altercation was advised that he was being
placed on administrative paid leave until further notice and that during
the pendency of the investigation of the April 24 altercation he was not
to enter any Postal facility or employee parking lot unless instructed to
by Postal management. On April 30, 2009 the Inspection Service completed
its investigation, the results of which were inconclusive as to what
had actually occurred between Complainant and the manager involved.
At the conclusion of the investigation, 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 requested
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On June 4, 2010, the AJ issued a summary decision finding no
discrimination. In reaching this decision, the AJ determined that
even if Complainant could establish a prima facie case, the Agency
had articulated legitimate, nondiscriminatory reasons for its actions.
As the AJ explained, Complainant alleges that when he was assaulted by the
manager involved, it was in retaliation for Complainant having engaged
in prior EEO activity. There is little question that Complainant's
position as Union President placed him at the forefront of many employee
EEO complaints, some of which apparently directly involved complaints
against the affected manger in this matter. However, there is no
evidence in this record to support Complainant's speculation that the
incident between him and the manager on April 24, 2009, was based upon
retaliation for Complainant's prior EEO activities. Rather, as maintained
by the Agency, the much more plausible basis for the altercation between
this manager and Complainant was Complainant's admitted failure to give
advance notice of his intention to be at the facility on the date in
question and his less-than courteous interactions with supervisors who
had alerted the manager involved to Complainant's presence.
Finally, there is no evidence that Complainant and the manager involved
were treated differently by the Agency as a result of the April 24
incident, as both were put on paid administrative leave pending the
outcome of the Agency's investigation into the matter. Inasmuch as the
Agency was
unable to determine as a result of its investigation who was responsible
for the confrontation, neither Complainant nor the associated manager
were given disciplinary action. Finally, Complainant regained his access
to Agency facilities upon agreeing to provide the advance notice required
by the relevant collective bargaining agreement.
In conclusion, the AJ found that the event of which Complainant complains,
fails to rise to the level of unlawful harassment prohibited by Title
VII. Most importantly, there is no evidence that any of the actions
or decisions of agency management were motivated by unlawful reasons.
Complainant failed to establish that any of management's reasons for its
actions were pretextual or unworthy of belief. Complainant failed to
establish discrimination under either the theory of disparate treatment
or unlawful harassment.
On appeal, Complainant asserts, inter alia, that the AJ improperly
entered summary judgment in this matter. He further asserts that the
AJ did not adequately address his claims of harassment.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity 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)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). 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 v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: "Conduct 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, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, 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 his statutorily protected class; (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; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on his statutorily protected class,
management continuously subjected him to a hostile work environment.
However, we find that Complainant has not shown that he was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
his protected class, or the harassment complained of was based on his
statutorily protected class. Further, Complainant has not shown that the
purported harassment had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile,
or offensive work environment. While Complainant has cited various
incidents where agency management took actions that were either adverse
or disruptive to him, we find that Complainant fails to show that these
incidents were as a result of unlawful discrimination. To the extent
Complainant is alleging disparate treatment with respect to his claims,
he has not shown that the agency's articulated reasons for its actions
were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
February 8, 2011
__________________
Date
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0120110095
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110095