0120152090
06-08-2017
Tommie O.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tommie O.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120152090
Agency No. 4E980009914
DECISION
On May 23, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 7, 2015, final decision 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
At the time of events giving rise to this complaint, Complainant worked as a Full-time City Carrier at Regal Post Office in Spokane, Washington.
On December 20, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when: on September 18, 2014, the Customer Services Supervisor, who was Complainant's direct supervisor ("S1"), yelled at him and physically assaulted him.
On September 18, 2014, Complainant needed to contact another carrier ("C1") who already left on his route, so he went S1's workspace to find C1's personal cell phone number. S1 was away from his desk helping a customer; so Complainant called C1 from S1's work phone, and sat down in S1's seat. Just as C1 answered the phone, Complainant alleges that he heard S1 shout in a "loud, hostile voice" to "[g]et out of my chair now!" Complainant turned around, in a "state of shock" at S1's tone. According to Complainant, S1 was waiving his arms in an aggressive manner, as he advanced, S1 allegedly repeated "[g]et out of my chair now!" in an "even more hostile tone." Complainant asked S1 to say "please" so S1 allegedly asked Complainant to get out of his chair again, "in a more annoyed voice," bringing his face close to Complainant's but this time saying "please." Complainant stood up and moved aside, but could not move more than a few feet away from the desk because the space was cramped.
Complainant alleges that S1 gave him "a look of disgust and sat down quickly, facing away from him. He further alleges that by sitting down, S1 caused the chair roll backward, toward Complainant. S1 made no effort to stop, and according to Complainant, the "back of the chair with [S1's] full weight behind the momentum struck [him] hard in [his] right leg." Complainant grimaced in pain, but he did not make a sound and he finished up his call with C1. Due to the cramped space, Complainant argues that it would be impossible for S1 not to have known that Complainant was behind him when the chair struck him, yet S1 did not turn around, check if Complainant was OK, or apologize. The physical harm was not significant, as Complainant completed his route and delivered additional packages he picked up from C1 without medical treatment, but recounts that he was "mentally shaken up." Complainant named S1 as a responsible management official in a discrimination complaint that was pending appeal before this Commission at the time. See EEOC Appeal No. 0120133382 (Feb. 11, 2015). Complainant alleges that S1 had "threatened" him and deliberately tried to physically harm him in retaliation.
Complainant did not report the incident to the Station Manager ("M1"), who was also named in his prior complaint, because he believing "it would be squashed or covered up." Instead, on September 19, 2014, Complainant contacted his Union representative and the Union President notified the Customer Service Operations Manager ("M2"). Within a half hour of learning about the alleged "assault," M2 drove to meet with Complainant while he was on his route and get his side of the story. While he did not conduct a formal investigation, M2 also spoke with both M1 and S1, about the incident, and "put [S1] on notice to treat everyone with dignity and respect as trained." S1 alleges that the meeting with M2 was the first time he became aware of Complainant's assault allegation and denied Complainant's characterization of him as "hostile," 'aggressive' and "threatening." Shortly thereafter, S1 transferred to a different postal facility.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
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, at Chapter 9, � 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").2
Here, Complainant's claim concerns one incident of alleged discrimination and does not involve any concrete adverse employment action. Therefore, a fair reading of the record indicates that Complainant has raised a claim of retaliatory harassment.
To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (June 18, 1999).
The Agency determined, and we agree, that Complainant failed establish the second element, discriminatory motive. In other words, he has not shown a "causal link" between the alleged discriminatory action in the instant complaint and Complainant's prior EEO activity, identified in the record as Agency Case No. 4E980006913 (alleging discrimination on the basis of sexual orientation and reprisal).
Complainant has not provided sufficient evidence that S1 knew of the alleged action, let alone that S1 acted intentionally, motivated by retaliation for Complainant's prior EEO activity. According to S1, he was unaware of the alleged discriminatory action of "assault" until M2 met with him about it on September 19, 2014. By S1's account, the chair did not roll, but turned after he sat down and turned away from Complainant, toward his work. When he sat down, S1 was aware that Complainant was about "three feet" from him, still talking on the phone, but was not aware that the chair made contact with Complainant when he turned (or rolled). S1 contends that he did not know that Complainant was harmed because Complainant continued his conversation with C1 the entire time and did not make any noises indicating he was in pain. C1 also did not recall Complainant indicating he was in pain when they were on the phone as the alleged assault occurred. Another letter carrier who was in the vicinity of S1's workspace at the time recalls in the record that Complainant "did not complain or show any signs of distress" when S1 sat down or when Complainant left S1's workspace. Further, Complainant acknowledges that S1 had his back to him when the alleged incident occurred and that his only outward indication that he was hurt was a "grimace" which S1 would not have seen.
Even if the incident occurred as Complainant alleged, and S1 acted intentionally, we agree with the Agency's finding that there is no direct evidence in the record of a causal link between the alleged discriminatory action by S1 in the instant complaint and Complainant's prior protected EEO activity. On appeal, Complainant appears to argue that a causal link exists because he named S1 as one of the responsible management officials in Agency Case No. 4E980006913 and because the matter was pending before this Commission on appeal at the time of the alleged discriminatory action in the instant complaint. We see no evidence in the record that S1 was aware Complainant's prior complaint was pending appellate review at the time of the alleged discriminatory act. Even if he was aware, the alleged discriminatory act in the instant complaint occurred on September 18, 2014. The six alleged discriminatory acts in the prior appeal occurred in May and June 2013. Complainant filed his formal complaint on July 22, 2013 and the Agency dismissed the complaint for failure to state a claim on August 26, 2013. Complainant appealed to this Commission on September 9, 2013, and the complaint was assigned EEOC Appeal No. 0120133382.3 This was Complainant's most recent protected EEO activity on record at the time of the alleged discriminatory action in the instant complaint over a year later, precluding an inference of causal connection based on temporal proximity. Again, we agree with the Agency, aptly citing Clark County School District v. Breeden, 532 U.S. 286 (2001), which further determined that the discrimination alleged in the instant complaint occurred too long after Complainant's prior protected activity to give rise to an inference of causal connection based on temporal proximity.
We also note that S2 took immediate and appropriate corrective action when he was notified of the alleged discriminatory action. Complainant expresses confidence in the record that S2 and his Union President will protect him and properly handle any future EEO allegations. Further, Complainant states in the record that ever since S1 left, he has not experienced any additional harassment from S1 and that M1 has acted "professional" toward him.
Dissatisfaction with the Investigative Record
Pursuant to 29 C.F.R. � 1614.108(b), an agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint and define an appropriate factual record as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. However, the complainant is provided an opportunity to cure defects in an investigation, after reviewing the report of investigation, by notifying the agency (in writing) of any perceived deficiencies in the investigation or by requesting a hearing before an AJ. See EEO MD-110, at Ch. 6, � XI and Ch. 7, � I.
Initially, Complainant chose not to take advantage of the above-mentioned opportunities to cure any defects in the instant investigation. However, Complainant's appellate argument focuses on "highlighting" areas "of the investigation that [he] feels were over-looked or not investigated." For instance, Complainant raises questions relating to the credibility of multiple witnesses. Upon review, we find that the Agency developed an impartial and appropriate factual record that allows us to draw conclusions as to whether discrimination on the basis of retaliation occurred. If Complainant wanted an opportunity to develop the record through discovery and cross examination of witnesses, he should have requested a hearing before an AJ.
New Claims of Discrimination
Under Commission policy, a complainant is protected from any retaliatory discrimination that is "reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) Additionally, agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. �1614.101; Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998).
On appeal, Complainant alleges that the retaliatory harassment was not limited to the claim in the instant complaint, but ongoing. Complainant also alleges that M1, who was his second line supervisor and S1's direct supervisor during the relevant time frame, also retaliated against Complainant, and did nothing to stop S1 from harassing him. Since S1's transfer, Complainant alleges that M1 continues to retaliate against him, and that M1 is not only aware that Complainant's co-workers make fun of him but he "encourages this type of harassment... every day on the workroom floor." We note that M1 states in the record that "[S1] was very well liked by all the employees here" and that because of Complainant's "assault allegation" against S1, "[m]ost of the employees here hold [Complainant] responsible [for S1's transfer] and [Complainant's] popularity level is very low." However, Complainant did not include these claims in his formal complaint, so they will not be adjudicated in this decision. If Complainant wishes to pursue these new claims in an EEO complaint, then he must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision.
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
June 8, 2017
__________________
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 Because the Agency addressed the merits of Complainant's complaint, we do not have to decide whether complaint states a claim.
3 On February 11, 2015 we issued a decision on EEOC Appeal No. 0120133382, reversing the Agency's August 26, 2013 dismissal (Agency Case No. 4E980006913) and remanding the matter for investigation. The Agency timely complied and afterward provided Complainant with a copy of the report of investigation. On July 8, 2015, per Complainant's request, the Agency issued another final decision on Agency Case No. 4E980006913, this time based on the merits of the Complainant's allegations. The Agency found no discrimination, so Complainant appealed to this Commission on July 21, 2015. The Commission assigned a new docket number, EEOC Appeal No. 0120152616. As of this Decision, that complaint is still pending.
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