0120152274
05-23-2017
Toney E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Toney E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120152274
Agency No. 1E982002814
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 27, 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 Mail Handler at the Agency's Seattle Network Distribution Center facility in Seattle, Washington.
On October 16, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and color (Not Specified) when, on various dates since July 4, 2014, he was harassed by a coworker. The Agency accepted the complaint for investigation.
The pertinent record reveals the following. Complainant names two Agency officials as the responsible management officials who allegedly subjected him to a hostile work environment. Specifically, he named the Manager, Distribution Operations, (Race (Filipino), Color (Brown)) (RMO1) and the Supervisor, Distribution Operations, (Race (Mixed), Color ("Neutral")) (RMO2). The record indicates that Complainant purchased a car from a coworker. Complainant acknowledged that he had a non-work related transaction outside of work with a coworker, who then harassed Complainant about the matter at work. Complainant stated that a co-worker harassed him on July 4, 11, 18, 27 2014 and on August 21, 22, 23, 24, 2014. Complainant averred that the car did not work well and it had to be fixed. The coworker was trying to serve a summons on Complainant.
Complainant averred that he reported the harassment to management and was instructed to write a statement. The record includes an email, from RMO2 (the Supervisor, Distribution Operations), which included in one of the incident reports a description of one altercation that occurred between Complainant and the coworker. The coworker alleged that Complainant assaulted him with his vehicle. Complainant alleged that the coworker pushed him and jumped on his car. The record also includes a Police Report concerning a July 18, 2014 incident. No criminal assault was noted on the report.
Management officials instructed the coworker to cease his actions. The record indicates that the coworker was issued a Notice of a Seven Calendar Day (No Time Off) Suspension, dated August 19, 2014. Complainant asserts that more should have been done, to be consistent with the Agency's Joint Statement on Violence and Behavior in the Workplace, which provides a policy of no tolerance of violence or threats in the workplace.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The Agency found that Complainant failed to establish his harassment claim because nothing in the record suggested management's, or the coworker's, actions were based on Complainant's race or color. Next the Agency reasoned that, assuming Complainant's version of the events was correct, his descriptions did not include any abusive language on the part of management or any other conduct which could be viewed as harassment. The Agency concluded that, based on the totality of the circumstances, Complainant has not shown that he was subjected to a hostile work environment based on his membership in any protected class. In addition, the Agency found that there was no basis on which to impute liability to the Agency. This appeal followed.
CONTENTIONS ON APPEAL
Complainant did not submit a brief in support of his appeal.
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").
We review this matter de novo and through the lens of the federal sector mandate of Title VII's Section 717. Title VII requires that "all personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based . . . race [or] color." 42 U.S.C. � 2000e-16(a).
To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she 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 their 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Finally, an agency may be liable for unlawful harassment by an employee when the agency has empowered that employee to take tangible employment actions against the victim, i.e., the harassing employee is a supervisor of the victim. In this case, the Agency took prompt and effective corrective action to address the harassment which was based on a non-workplace sale of a vehicle. Under these circumstances, we do not find any basis to hold the Agency liable for the coworker's attempts to serve a summons on Complainant. Further, we find that management's actions were not likely to deter Complainant, or any other employees, from personally engaging in the EEO process.
We find, therefore, that the record supports the Agency's final decision because Complainant failed to show that he was subjected to a hostile work environment because of his race or color.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final 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 tends 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
May 23, 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.
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