01a00659
03-28-2000
Daniel K. Powell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel K. Powell, )
Complainant, )
)
v. ) Appeal No. 01A00659
) Agency No. 4D-290-0008-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
Complainant filed the instant appeal from the agency's August 30,
1999 decision finding that the agency did not discriminate against
complainant based on complainant's sex (male).<1> Complainant alleged
in his complaint that he was discriminated against when in September
1998 he was forced to resign due to a hostile work environment created
by Supervisor A.
Complainant did not request a hearing before an EEOC Administrative Judge.
In his affidavit complainant alleged:
Based on statements made to me by several of my co-workers at the post
office, I believe that [Supervisor A] discriminated against me for the
period of September 1997 through September 1998. He made comments[,]
asked questions, and voiced doubts about my reasons for being single,
my dating habits, my appearance, and my sexual orientation. I believe
if I were not a male, I would not have been scrutinized and maligned in
this way.
. . . .
It was at this time that I was told by [Coworker A] that [Supervisor A]
had made some comments about me. . . .
[Coworker A] told me that during a break [Coworkers B and C] had
revealed that [Supervisor A] had made remarks and asked questions
concerning my sexual orientation. I called [Coworker C] to confirm
this. [Coworker C] told me that it had been the previous year that this
happened. . . . [Coworker B] said that [Supervisor A] had been making
comments �full of innuendo� during the last year. These included snide
remarks about my shoes, clothes, hair, marital status, my not dating,
and describing me as �like a woman with PMS�. She then told me to talk
to [Coworker D] who had revealed that [Supervisor A] had �said it to
her point blank�.
Supervisor A effectively denied making any comments with any offensive
intent. Supervisor A specifically denied making any comments regarding
complainant's sexual orientation. The agency found that complainant
was not discriminated against on the basis of his sex.
The agency only obtained two affidavits - an affidavit from complainant
and an affidavit from Supervisor A. The investigative report states
that both Coworkers B and D received a request for an affidavit,
but that neither Coworker B nor Coworker D responded to the request.
No further explanation is provided as to why Coworkers B and D did not
provide the requested affidavits.
EEOC Regulations require that agencies shall develop �an impartial
and appropriate factual record upon which to make findings on the
claims raised by the written complaint.� 64 Fed. Reg. 37,644, 37656
(to be codified as and hereinafter cited as 29 C.F.R. � 1614.108(b)).
Section 1614.108(b) explains that: �An appropriate factual record
is one that allows a reasonable fact finder to draw conclusions as
to whether discrimination occurred.� Furthermore, EEOC Regulation 29
C.F.R. � 1614.108(c)(1) provides: �The complainant, the agency, and
any employee of a Federal agency shall produce such documentary and
testimonial evidence as the investigator deems necessary.�
The Commission finds that in the instant matter the agency failed to
develop an impartial and appropriate factual record. Apart from the
affidavit requests of Coworkers B and D, there is no indication that
the investigator attempted to gather affidavits from the corroborating
witnesses listed by complainant in his affidavit. Statements from the
witnesses listed by complainant are relevant in the instant matter because
the issue in this case involves a matter of credibility. Supervisor A
and complainant have provided different versions of what comments were
made and actions were taken by Supervisor A and the context in which
those comments were made and actions were taken. The names of witnesses
who would corroborate complainant's version of events were provided by
complainant to the investigator. Even if such names were not provided
by complainant, a proper investigation should have included affidavits
from persons in complainant's work area who might have witnessed some
of the incidents at issue.
Therefore, the Commission shall remand the matter so that the agency
may conduct a supplemental investigation by obtaining affidavits from
all persons who might have reasonably witnessed the alleged harassment.
At a minimum, the agency shall gather affidavits from all persons listed
by complainant in his affidavit (to the EEO investigator) as witnesses
to the alleged harassment. After reinvestigating the complaint, the
agency shall reissue a final decision.
The agency's decision finding no discrimination is VACATED and we REMAND
the matter to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency shall conduct a supplemental investigation by obtaining
affidavits from all persons who might have reasonably witnessed the
harassment alleged by complainant. At a minimum, the agency shall gather
affidavits from all persons listed by complainant in his affidavit
(to the EEO investigator) as witnesses to the alleged harassment.
After reinvestigating the complaint, the agency shall, within 60 days
of the date this decision becomes final, reissue a final decision.
A copy of the new final decision must be sent to the Compliance Officer
as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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
(R1199)
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:
March 28, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.