copy_of_01a44952_r
11-15-2005
Yusuf Ige, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yusuf Ige v. United States Postal Service
01A44952
11/15/05
.
Yusuf Ige,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44952
Agency No. 1E-801-0281-03
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his formal complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Casual Worker at
the agency's Aurora, Colorado facility. On July 17, 2003, complainant
filed a formal complaint. Therein, complainant claimed that he was
discriminated against on the bases of race (African-American), national
origin (Somalian), sex (male), religion (Muslim), and in reprisal for
prior EEO activity.
On September 18, 2003, the agency issued a partial acceptance/dismissal
letter. Therein, the agency accepted the following claims for
investigation:
1) From April 2, 2003-June 27, 2003, [complainant was] harassed by a
co-worker, [C1]; and
2) [On] June 27, 2003, [complainant was] not reappointed to another
casual appointment.<1>
However, the agency dismissed the following claim:
3) On April 2, 2003, the Acting Supervisor told [him] that if [he] had
a problem with [C1], he would take [complainant's] ID badge away from
[him] and fire [him].<2>
The agency dismissed claim (3) for failure to state a claim.
Specifically, the agency stated that complainant was not aggrieved by
this alleged incident.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its final decision dated June 18, 2004, the agency concluded that
complainant was not subjected to unlawful discrimination. Regarding claim
(1), (complainant's hostile work environment claim), the agency stated
that complainant's harassment claim was �not corroborated by the evidence
of record.� The agency further stated that the alleged incidents do not
�rise to the level of severity necessary to trigger a violation of Title
VII.� Moreover, the agency found that the record does not reflect that
complainant reported the alleged harassment to management.
Regarding claim (2), (complainant not being reappointed to another
casual position), the agency stated that complainant failed to establish
a prima facie case of race, national origin, sex, and/or religious
discrimination. In addition, the agency found that complainant failed
to establish a prima facie case of retaliation. Furthermore, the agency
stated that it articulated legitimate nondiscriminatory reasons for
its action. Specifically, the agency stated that complainant's casual
appointment ended.
Claims (1) and (2): Hostile Work Environment Claim and Failure to
Reappoint Complainant to another Casual Position
A fair reading of the record reflects that complainant is claiming
that he was subjected to unlawful harassment by a co-worker, which he
reported to management officials; subsequently, complainant asserts
that the agency failed to reappoint him to another casual position.
Specifically, we note that complainant states that the following alleged
incidents comprise his hostile work environment claim:
on March 25, 2003, C1 told complainant that men from Africa treat their
women like dogs;
on April 2, 2003, C1 told complainant that his �dad' (referring to a
named agency official) had left the building and that no one could help
him now;
on April 2, 2003, C1 threatened to write a statement to a named
supervisor in an effort to have complainant terminated;
on April 9, 2003, C1 pushed a cage towards a group of employees including
complainant and showed him a letter written to a named supervisor
stating that she had been told that if she had any more problems with
complainant he would be fired;
on April 12, 2003, C1 grabbed a sack of mail out of complainant's
hands;
on various occasions, C1 came into his unit after she and complainant
had been instructed to stay away from each other;
on an unspecified date, C1 accused complainant of being Osama Bin
Laden's nephew;
on an unspecified date, C1 told complainant that his religion was �bad�;
on an unspecified date, complainant told a named supervisor of the
alleged harassment by C1 and the supervisor called him �a slave�; and
on June 27, 2003, complainant was not reappointed to a casual position.
Upon review of the record, the Commission finds that the record is
insufficient to allow a determination on the merits of complainant's
complaint. Our regulations and EEOC Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110) (November 9, 1999), require agencies to
develop a complete and factual record. See 29 C.F.R. � 1614.108(b);
EEO-MD-110, Chapter 6. We note that the record does not contain an
affidavit from the alleged harasser, C1. In addition, the record does
not reflect that the investigator even attempted to solicit an affidavit
from this individual.
In his affidavit and formal complaint, complainant also asserts that he
informed two agency officials, his immediate Supervisor (R1) and R1's
Supervisor (F1), about the alleged harassment; however, the record does
not contain affidavits from these individuals.<3> Specifically, in an
attachment to complainant's formal complaint, complainant asserts that
he told R1 about the problems he was having with C1. Complainant states
�[R1] told me that there was nothing he could do about it...Since my
immediate supervisor, [R1], would not do address the problems that I
was having with [C1], I turned to F1 for help. [F1] was the M.D.O. for
the Colorado Priority unit...I [told F1] that when I complained to [R1]
about the harassment, he said he couldn't do anything about it....[F1]
told [R1] to separate me from [C1] ...[R1] ignored the instructions of
his supervisor. He continued to assign me to work with [C1].�
The Commission further notes that in his affidavit, complainant lists
numerous individuals that he requested be interviewed as part of the
investigation. Complainant asserted that some of these individuals were
witnesses to the alleged incidents or had knowledge that he informed
management about the alleged hostile work environment. However, the
record reflects that the investigator solicited an affidavit from only
one of complainant's designated witnesses. Based upon the foregoing, we
remand this matter to the agency to conduct a supplemental investigation
as set forth in the Order below.
Dismissed Claim: Claim (3)
We find that the agency improperly framed claim (3) as a separate claim.
Upon review of the entire record, we note that complainant does not
raise claim (3) as a separate claim; rather, complainant addresses this
alleged incident in order to describe management's response when he
reported the alleged harassment. Therefore, the agency should consider
this alleged incident within the context of complainant's hostile work
environment claim.
Accordingly, we VACATE the agency's final decision finding no
discrimination regarding the matters that are identified herein as
claims (1) and (2); and we REVERSE the agency's dismissal of claim (3).
The instant complaint as identified herein is REMANDED to the agency
for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall ensure that the investigator obtains affidavits
from the individuals identified by complainant as being witnesses to the
alleged discriminatory incidents and/or having knowledge of complainant
notifying management about the alleged harassment.
2. The agency shall ensure that the investigator obtains affidavits
from R1 and F1, the agency officials to whom complainant claims that he
reported the alleged harassment. The agency shall also ensure that the
investigator obtains an affidavit from C1, the alleged harasser.
3. The agency shall ensure that the investigator obtains any other
affidavits or documentation not specifically requested in this Order,
and consistent with this opinion, which may be relevant in determining
the merits of complainant's complaint.
4. The agency shall ensure that the investigator completes the
supplemental investigation within sixty (60) calendar days from the
date this decision becomes final. Thereafter, the agency shall provide
complainant, within thirty (30) calendar days from the date the agency
completes the supplemental investigation, an opportunity to respond to
the supplemental investigative report. The agency shall issue a new final
agency decision within thirty (30) calendar days of complainant's response
or, if complainant fails to respond, within thirty (30) calendar days
following the last day complainant would have been permitted to respond.
Copies of the completed supplemental investigation and the new final
agency decision must be submitted to the Compliance Officer, as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 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 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
(R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
11/15/2005
Date
1The record reflects that complainant was rehired as a casual on December
6, 2003.
2For ease of reference, the Commission has renumbered the agency's
framing of complainant's claims.
3The record reflects that the investigator attempted to obtain an
affidavit from R1. The record contains an affidavit request from the
investigator to R1 dated December 4, 2003. The record reflects that
R1 received the affidavit request on December 11, 2003. However, the
record is devoid of evidence that the investigator sent out a second
affidavit request to R1 or followed up with R1 regarding the initial
affidavit request. In addition, the record does reflect that the
investigator attempted to obtain an affidavit from F1.