01a40751r
08-03-2005
Mathew K. Samuel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Mathew K. Samuel v. United States Postal Service
01A40751
August 3, 2005
.
Mathew K. Samuel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 01A40751
Agency No. 1B-065-0057-01
Hearing No. 160-A3-8094X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that complainant, a Mailhandler at the agency's
Bridgeport, Connecticut facility, filed a formal EEO complaint on
September 4, 2001, alleging that the agency discriminated against and
harassed him on the bases of sex (male), disability, and in reprisal
for prior EEO activity (arising under the Rehabilitation Act) when in
June 2001, his supervisor confronted him, changed his schedule, yelled
and shook his finger at him, and struck him.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency moved for a decision without a
hearing, to which complainant responded. The AJ granted the agency's
motion for a decision without a hearing, finding no discrimination.
The AJ found that complainant failed to establish a prima facie case
of discrimination on the bases of sex and disability because he failed
to show that similarly situated individuals outside his protected
classes were treated more favorably than he was. The AJ also found that
complainant failed to prove a prima facie case of reprisal because there
was no nexus between his prior protected activity and the alleged actions.
The AJ further found that the incidents alleged by complainant were
not severe or pervasive enough to constitute actionable harassment.
The agency's final order implemented the AJ's decision.
The record reveals that complainant suffered an on-the-job injury
in May 1991 that resulted in herniated discs in his neck and back.
The injury led to medical restrictions on his ability to use his arms
and legs, including a restriction from lifting more than twenty pounds.
Complainant was terminated from the agency in May 1994 because there was
no work available within complainant's medical restrictions. Complainant
filed an EEO complaint on June 20, 1995 regarding his termination.
The complaint resulted in a finding that the agency failed to accommodate
complainant's disability, which was affirmed on appeal to the Commission.
Samuel v. USPS, EEOC Appeal No. 01985021 (July 16, 1999). The Commission
ordered the agency to determine complainant's medical restrictions and
reinstate him to a mail handler's position with duties consistent with
his medical restrictions.
Prior to returning to work, the agency sent complainant for a fitness
for duty examination. Based on the examination, complainant was
issued temporary light duty restrictions. Complainant was cleared to
do sedentary work, sorting mail, repairing damaged mail, making labels,
bagging mail, copying, filing, answering telephones, and canceling mail.
Complainant was restricted from lifting more than ten pounds.
Complainant alleged that he was harassed and discriminated against
around a year after he returned to work by his supervisor regarding his
medical restrictions. He alleged that the supervisor told him that he
needed to provide updated medical documentation and threatened to send
him to work elsewhere if he did not provide the updated documentation.
Complainant contended that in a meeting on June 6, 2001, the supervisor
raised his voice, yelled at him, told him to �shut up,� came out of his
chair, struck complainant's chin, touched complainant's shoulder with his
finger, and told the union steward to remove complainant from his office.
In an investigative affidavit, the union steward who was present at
the heated meeting stated that the supervisor angrily raised his voice
with complainant about his medical restrictions, told complainant to
leave his office, and aggressively touched complainant on his shoulder.
He stated that complainant was calm throughout the meeting.
Complainant further alleged that a disabled female clerk who worked in
his work area was treated more favorably than he was. Specifically,
he alleged that the female clerk was given a particular type of stamp
and was permitted to change her work hours, while his requests for a
date stamp and earlier work hours were denied.
On appeal, complainant contends that the AJ erred when she found no
discrimination or harassment. Complainant contends that he proved that
he was harassed on the basis of disability because the supervisor's
conduct toward him in Spring 2001 only occurred because complainant was
a disabled employee seeking to work within his restrictions.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or he finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate when a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case can
only be resolved by weighing conflicting evidence, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
In this matter, assuming complainant's version of the facts to be true, we
find it appropriate to determine whether, as a matter of law, complainant
has sated an actionable claim of harassment. Under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in order
to prevail on a claim of harassment, complainant must prove that:
(1) he was subjected to harassment that was sufficiently severe or
pervasive to alter the terms or conditions of employment and create an
abusive or hostile environment; and (2) the harassment was based on his
membership in a protected class. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6;
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
In assessing whether the complainant has set forth an actionable claim
of harassment, the conduct at issue must be viewed in the context of
the totality of the circumstances, considering the nature and frequency
of offensive encounters and the span of time over which the encounters
occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current
Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
However, as noted by the Supreme Court in Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998), "simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment." The Court noted
that such conduct "must be both objectively and subjectively offensive,
[such] that a reasonable person would find [the work environment to be]
hostile or abusive, and ... that the victim in fact did perceive it to be
so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Complainant alleges that in a meeting regarding his medical restrictions,
his supervisor angrily yelled and shook his finger at him, struck him
on the chin with his finger, grabbed complainant by the shoulder, and
ordered complainant to leave his office. Complainant also contends that
his supervisor threatened to assign him to work outside his restrictions
and denied him a stamp that was granted to another disabled employee.
In an investigative affidavit, the supervisor responded that on June
6, 2001, he met with complainant to discuss the need for an update
of complainant's medical evaluation because his last evaluation was
over a year old. The supervisor stated that after the meeting began,
complainant became angry and raised his voice. He further acknowledged
that he raised his voice when complainant stated that he was harassing
him, told complainant to leave, and shut the door behind complainant.
He stated that he could not recall shaking his finger in complainant's
face or striking him.
In this case, crediting complainant's versions of the facts as true,
we nevertheless find that the alleged actions do not state a claim
of harassment. While the claimed actions of the supervisor may have
been unprofessional, the actions are not severe or pervasive enough
to constitute actionable harassment. Timbs v. Department of Veterans
Affairs, EEOC Appeal No. 01A44688 (November 8, 2004)(incident where
agency physician grabbed complainant's wrist and screamed at him in
front of other employees not severe or pervasive enough to constitute
harassment).<0> Therefore, after a careful review of the record,
including complainant's arguments on appeal and the agency's response,
the Commission AFFIRMS the agency's final order.
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 (S0900)
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 (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 othis 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:
______________________________ __August 3, 2005____
Carlton M. Hadden, Director Date
Office of Federal Operations
0 1The AJ made credibility determinations in favor of the agency
concerning complainant's harassment claim which were inappropriate
when issuing a decision without hearing. Nevertheless, we find that
the issuance of a decision without a hearing was proper because even
assuming that complainant's version of the facts are true, he nonetheless
failed to state a claim of harassment.