0120150160
03-08-2017
Susie K,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Susie K,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120150160
Agency No. 1J-461-0013-14
DECISION
On October 11, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 15, 2014, final decision concerning her 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 VACATES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the record is adequately developed to allow the Commission to determine if the Agency subjected Complainant to harassment on the basis of sex (female) in connection with a supervisor's actions beginning in September 2013.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail Processing Clerk at the Agency's Indianapolis Processing and Distribution Center in Indiana. Complainant's scheduled days off were Tuesdays and Wednesdays. Report of Investigation (ROI), at 83-84.
Complainant worked in the Dual Primary unit under the supervision of a Supervisor, Distribution Operations (SDO1). SDO1's scheduled days off were Saturdays and Sundays. Id. at 89-93. Another Supervisor, Distribution Operations (SDO2 - male), who usually supervised a different unit, supervised SDO1's unit approximately two days a month when SDO1 was absent. Id. at 79, 89-93. SDO2's scheduled days off were Sundays and Mondays. Id. at 89-93. In addition to supervising his own unit and occasionally supervising SDO1's unit, SDO2 worked in the Resource Management Office on attendance-related issues approximately seven days a month. Id. at 79, 89-93. Complainant and SDO2 both worked on Thursdays, Fridays, and Saturdays. Id. at 83-84, 89-93.
On April 1, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to harassment on the basis of sex (female). Specifically, Complainant alleged the following incidents of harassment:2
1. Beginning in September 2013, on each day that they both worked, SDO2 showed up at her work area during her break/lunch/departure times, attempted to engage her in conversation, and stared at her in an uncomfortable manner. Although she changed her break/lunch times and locations to avoid SDO2, he kept showing up.
2. On an unspecified date, SDO2 altered her leave requests (PS Form 3971) for August 8-9, 2013 to falsely indicate that she only requested sick leave and not Family and Medical Leave Act (FMLA) leave. In a routing slip to management dated October 23, 2013, she requested that SDO2 not be involved in any way with her leave requests. Management responded that SDO2 would continue to handle leave requests "whenever appropriate."
3. On October 4, 2013, SDO2 verbally counseled her about her attendance, including her unscheduled absences on August 8-9, 2013.
In her formal complaint, Complainant alleged that SDO2 had previously engaged in similar harassing conduct towards her. Id. at 18. Specifically, Complainant stated that in 2006 or 2007, when SDO2 was her supervisor, she complained to a Manager, Distribution Operations (FMDO) about SDO2 stalking her, saying inappropriate things to her, and paging her excessively. In addition, Complainant stated that FMDO moved her to a different work area, but SDO2 shortly thereafter moved to the same work area and renewed his harassment. Moreover, Complainant stated that SDO2's harassment stopped because she went on disability leave for approximately four years. Finally, Complainant stated that she returned to work in December 2012 and SDO2 resumed his harassment in September 2013.
In her affidavit testimony, Complainant stated that she believed that SDO2's conduct was based on her sex for the following reason: "Because of previous history with [SDO2], and the way he was and still is pursuing me is the way a man monitors/watches a person they are interested in. [SDO2] constantly had me on his mind. I wasn't giving him enough attention . . ." Id. at 69.
During the investigation, the EEO Investigator asked Complainant if there were any witnesses to the incidents. In response, Complainant stated that several of her coworkers had seen SDO2 watching her and provided the names of nine individuals. Id. at 71. In addition, the EEO Investigator asked Complainant if she had reported the incidents to anyone. In response, Complainant stated that she contacted or attempted to contact the following individuals in October 2013, November 2013, January 2014, and March 2014: SDO1, the Manager, Distribution Operations (MDO), the Lead Manager, Distribution Operations (LMDO), the Senior Manager, Distribution Operations (SMDO), the Plant Manager (PM), the Labor Relations Specialist who dealt with FMLA (LRS), the Union Representative (UR), the Union President (UP), and the Postal Inspector (PI). Id. at 67-68, 72.
The EEO Investigator obtained affidavits from Complainant, SDO2, MDO, and LRS. Id. at 8. The EEO Investigator did not seek affidavits from anyone else. Specifically, the EEO Investigator noted that he did not seek affidavit testimony from SMDO or PI "due to the fact that [Complainant] was unsuccessful in her efforts to contact them previously." Id. at 13. In addition, the EEO Investigator noted that he did not seek affidavit testimony from the other individuals named by Complainant because he "did not find the suggestion of their expected testimony to be determinate of a material fact in dispute." Id.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that Complainant was not subjected to harassment on the basis of sex. Among other things, the Agency found that Complainant did not establish that incident 1 occurred as alleged. Specifically, the Agency cited SDO2's affidavit testimony that he was not aware of Complainant's break/lunch times or where she took her break/lunch. In addition, the Agency cited SDO2's affidavit testimony that he seldom saw Complainant to talk to or deal with, did not stare at her, and only watched the unit for work-related reasons when supervising. Moreover, the Agency cited MDO's affidavit testimony that he was not aware of any attempts by SDO2 to engage in conversation other than normal supervisor-employee communication and was not aware of any staring. Finally, the Agency cited LRS' affidavit testimony that she never talked to Complainant about, or had any personal knowledge of, any harassing conduct by SDO2.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates that SDO2 harassed her and submits new evidence not previously part of the record. In opposition, the Agency requests that we disregard the new evidence submitted by Complainant and affirm its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, at VI.A (Aug. 5, 2015) (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
An agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id.
The resolution of a harassment claim often depends on the credibility of the parties. See EEOC Policy Guidance on Current Issues of Sexual Harassment, Notice No. N-915-050, Guidance, � B (Mar. 19, 1990). If there are conflicting versions of relevant events, credibility assessments can be critical in determining whether the alleged harassment in fact occurred. See EEOC Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors, Notice No. 915.002, � V.C.1 (June 18, 1999). Factors to consider in assessing credibility include corroboration (whether there is witness testimony from eyewitnesses or from people who discussed the incidents with the complainant at around the time that they occurred) and past record (whether the alleged harasser has a history of similar behavior in the past). See id.
Upon review, we find that the record is not adequately developed to allow the Commission to determine if the Agency subjected Complainant to harassment on the basis of sex (female). Specifically, we find that the record contains inadequate testimonial and documentary evidence to allow us to determine if SDO2 engaged in the conduct described in incident 1.
Complainant alleged that SDO2, approximately three times a day (break, lunch, and departure times) on the three days a week they both worked (Thursdays, Fridays, and Saturdays), showed up to her work area, attempted to engage her in conversation, and stared at her in an uncomfortable manner. SDO2 denied that he engaged in such conduct.
Even though Complainant provided the EEO Investigator with the names of nine individuals who allegedly witnessed SDO2's conduct in 2013-2014, the EEO Investigator failed to obtain affidavits from any of those named individuals. Even though Complainant provided the EEO Investigator with the names of nine individuals whom she allegedly contacted (or attempted to contact) to report SDO2's conduct in 2013-2014, the EEO Investigator failed to obtain affidavits from seven of those named individuals (SDO1, LMDO, SMDO, PM, UR, UP, and PI). Even though Complainant alleged in her formal complaint and in her affidavit testimony that SDO2 had engaged in similar conduct towards her in 2006-2007, the EEO Investigator failed to obtain evidence pertaining to that time period.
Based on the above, we conclude that the present record lacks the necessary information upon which to adequately determine if the Agency's actions were discriminatory. Accordingly, we remand this case back to the Agency to conduct a supplemental investigation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND Complainant's complaint in accordance with this decision and the Order below.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation to develop an adequate factual record regarding Complainant's harassment claim, as described above. The Agency shall obtain all pertinent evidence to address the harassment claim including, but not limited to:
a. A sworn affidavit from SDO2 about the history of his work relationship with Complainant, including the allegations pertaining to 2006-2007.
b. A sworn affidavit from FMDO about the history of SDO2's work relationship with Complainant, including the allegations pertaining to 2006-2007.
c. Any documentary evidence related to the allegations pertaining to 2006-2007.
d. Sworn affidavits from the nine individuals named by Complainant as eye-witnesses to SDO2's conduct in 2013-2014.
e. Sworn affidavits from the individuals named by Complainant as people she had contacted (or attempted to contact) to report SDO2's conduct in 2013-2014: SDO1, LMDO, SMDO, PM, UR, UP, and PI.
f. A rebuttal statement from Complainant after she has had an opportunity to review the requested sworn affidavits and documents.
2. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within one hundred and twenty (120) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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 (R0610)
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 (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
__3/8/17________________
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 For purposes of clarity, we have renumbered and rephrased the incidents based on Complainant's formal complaint, Complainant's affidavit, and the documentary evidence in the record. ROI, at 18, 64-74, 113-15.
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