Daniel K. Powell, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 28, 2000
01a00659 (E.E.O.C. Mar. 28, 2000)

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.