0120080994
08-27-2009
Elliott Haines, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elliott Haines, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 0120070379, 0120080994
Hearing Nos. 120-2005-00406X, 531-2006-00111X
Agency Nos. 1K-211-0076-04, 1K-211-0104-04
DECISION
On October 23, 2006, complainant filed EEOC Appeal 0120070379 from
the agency's September 6, 2006 decision, denying his request for
class certification. On December 19, 2007, complainant filed EEOC
Appeal No. 0120080994 from the agency's November 16, 2007 final order
concerning his individual 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.
These appeals are accepted pursuant to 29 C.F.R. � 1614.405(a). The
above-referenced appeals are consolidated in the interest of judicial
economy.
The Commission finds that the decision denying complainant's request
for class certification on procedural grounds was proper pursuant to 29
C.F.R. � 1614.107(a) (1). The Commission also finds that the agency's
decision finding no discrimination on complainant's individual complaint
was properly supported by the hearing record. For the following reasons,
the Commission AFFIRMS the agency's final orders.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a small parcel bundle sorter machine operator at the agency's USPS
Processing and Distribution Center in Frederick, Maryland.
Agency No. 1K-211-0104-04 - individual complaint
Complainant filed an individual EEO complaint alleging that he was
discriminated against on the basis of reprisal for prior protected EEO
activity and on the basis of sex (male) under Title VII when:
1. the agency forced complainant to work outside of his medical
restrictions on June 15, 2004, April 21, 2005, and May 4, 20051;
2. a co-worker called complainant a "cocksucker," and told
complainant that he should "be on the fucking street" on April 4, 2004;
3. the co-worker repeatedly interfered with complainant's work and
the co-worker ordered complainant to replace a cart on November 19, 2004;
4 the same co-worker told complainant that his console was broken
when it was not, on February 19, 2005;
5. the co-worker, without authority, told complainant to set up
priority mail on March 19, 2005;
6. on March 20, 2005, the coworker used profanity toward complainant
and ordered complainant to do sweeping operations;
7. on May 14, 2005, the coworker violently opened a door just
missing complainant and then told him, "Watch out Elliott, you don't
want to get hurt";
8. on May 15, 2005, the co-worker spilled a liquid on complainant's
seat; and
9. on May 19, 2005, the co-worker interfered with his work by
turning off the switch at his console.
The person allegedly responsible was a co-worker who sometimes served
as an acting supervisor to complainant. The record shows that the
co-worker was not aware of complainant's earlier EEO activity until
November of 2005, after all of the incidents at issue had occurred.
The co-worker testified that he did not realize complainant was present
at the time that he turned off the console and that it was not done
to harass complainant. The co-worker admitted that he spilled water on
the seat in which complainant later sat. The agency investigated this
incident and concluded that the spilling of the water was inadvertent.
At the conclusion of the investigation of his complaint, complainant
was provided with a copy of the report of investigation and notice of
his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Commencing September
11, 2007, the AJ held a multi-day hearing on complainant's individual
complaint. On October 31, 2007, the AJ issued a decision finding no
discrimination.
Following the hearing on complainant's individual claims, the AJ
found that there was no evidence that the incidents at issue were
based on complainant's sex or prior protected activities. With regard
to complainant's allegation of sex discrimination, the AJ found that
complainant failed to offer evidence of any females being treated more
favorably or that the actions were due to complainant's sex. With respect
to the incidents in which complainant alleged that the co-worker told
complainant to do certain things (such as replace the cart), the AJ found,
based on the testimony that co-workers would sometimes tell each other
what to do and that it was reasonable and expected that co-workers would
sometimes tell each other what to do in order to get the job done.
With regard to the allegation that the co-worker believed complainant
should be on the street, the AJ reasoned that no agency action was taken
based on the co-worker's opinion that complainant should be put on the
street. In finding no reprisal, the AJ found that the co-worker did
not learn of complainant's prior EEO activity until after all of the
incidents at issue in this case had occurred. The AJ reasoned that the
co-worker did not know about complainant's EEO activity and that there
was no evidence linking the incidents to EEO activity. The AJ concluded,
based on the preponderance of the evidence, that complainant failed to
establish that he was discriminated against on the basis of reprisal or
with respect to his sex.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to establish a prima facie case of discrimination
as alleged.
Agency No. 1K-211-0076-04 - class certification
On February 22, 2005, complainant filed a request for class certification.
He sought certification on behalf of a class of all present and former
agency employees who participated in EEO proceedings without being
apprised of the procedure for paid time off and as a result have been
uncompensated or inadequately compensated. In an individual complaint
dated November 6, 2004, complainant alleged that he was subjected to
retaliation for prior EEOC activity when, from July 5, 2003 to May 11,
2004, he was not allowed official time to prepare his EEO complaint on a
different matter and when, on June 15, 2004, complainant was allegedly
forced to work outside of his medical restrictions. The record shows
that the agency provided complainant with notification of his rights
and provided him time to prepare his EEO matters.
The record also shows that the Commission has rendered prior decisions
with regard to the relief due complainant in connection with his medical
claims and with regard to his request for class certification. The
Commission has previously denied the request to amend the complaint to
seek class relief in Elliott Haines, III v. United States Postal Service,
EEOC Request No. 05A40105 (December 8, 2003).
On September 6, 2006, the AJ issued an order denying the motion to
amend to add additional claims and denying complainant's motion for
class certification. The AJ denied the motion to amend for procedural
reasons because complainant was alleging dissatisfaction with the EEO
process and was not challenging any policy or practice that allegedly
discriminates on the basis of race, color, religion, sex, national
origin, age of disability. The AJ also referenced that these matters
were previously addressed.2
The denial of class certification is the only issue pending in this appeal
(EEOC Appeal No. 0120070379) filed on October 23, 2006. We note that
another appeal filed by complainant (docketed on October 2, 2006) was
the subject of the Commission's decision Elliott Haines, III v. United
States Postal Service, EEOC Appeal No. 0120070988 (April 30, 2009).
The Commission therein affirmed the agency's calculations of the damages
to which complainant was entitled, and noted that complainant had not
shown that he was entitled to further compensation or claimed that any
specific calculation of the amount awarded was incorrect.
In reaching his decision on the class-certification request at issue,
the AJ referenced the EEOC regulation that mandates the dismissal of
claims that allege dissatisfaction with the EEO process. Finally, the AJ
also denied the request for class certification because complainant's
claim was not typical of the class. The AJ noted that the record shows
that complainant, the putative class agent, received notification of
his right to request official time, while the putative class members
did not receive such notice. On September 26, 2006, the agency issued
a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
Complainant did not submit a brief in support of either of these appeals.
With regard to the denial of class certification, the agency argues that
the decision denying class certification is the only issue pending on
appeal and that the class claims fail procedurally because the claims are
not EEO-based and are not like or related to the claims asserted in the
original complaint. The agency further argues that the AJ's determination
was correct in his conclusion that complainant failed to provide evidence
to establish the prerequisites necessary for a class action.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was
held. An AJ's credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
We find that the record supports the AJ's determination that complainant
did not show that he was subjected to unlawful retaliation or sex
discrimination. The evidence does not show that complainant was required
to work outside his medical restrictions. Further, the evidence supports
the AJ's finding that complainant failed to establish the prima facie
elements of his complaint because he failed to show that any of the
actions were directed against him because of his sex and because actions
all occurred before the responsible co-worker knew about complainant's
EEO activity. The AJ found, based on the preponderance of the evidence
that complainant filed to establish that he was discriminated against
or harassed on the basis of reprisal or his sex.
The Commission further finds that class certification was properly denied
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
We note that, standing alone, a claim that the agency failed to provide
notice in accordance with the Commission's regulations fails to state a
statutory claim of discrimination or retaliation. See Backo v. United
States Postal Service, EEOC Request No. 05960227 (June 9, 1996); Henry
v. United States Postal Service, EEOC Request No. 05940695 (February 9,
1995).
The EEOC regulation set forth at 29 C.F.R. � 1614.107(a) (1) also
provides that the agency shall dismiss a complaint that states the
same claim that is pending before or has been decided by the agency
or Commission. As stated above, the Commission previously addressed
this matter in Elliott Haines, III v. United States Postal Service,
EEOC Request No. 05A40105 (December 8, 2003).3
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final orders.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 27, 2009
Date
1 The Administrative Judge determined that allegation 1 (working
outside of his medical restrictions) was based on reprisal.
2 The Commission affirmed an AJ's decision regarding complainant's
entitlement to pecuniary damages in Elliott Haines, III v. United
States Postal Service, EEOC Appeal No. 01A45725 (May 25, 2006), req. for
recon. denied, EEOC Request No. 05A60867 (July 14, 2006).
3 Because we affirm the agency's final order for procedural reasons,
we need not reach the merits of the class determination.
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0120080994
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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