0120160777
05-22-2018
Ollie L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ollie L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160777
Agency No. 1G-781-0032-15
DECISION
On December 6, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 9, 2015, final decision concerning his 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected him to sexual harassment in connection with the conduct of his Acting Supervisor beginning on February 12, 2015.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Equipment Operator, M-05 at the Agency's McAllen Processing and Distribution Center facility in McAllen, Texas. Complainant asserted that on the date at issue, his Acting Supervisor (S1) asked him to go out to lunch with him, and persisted in asking him out when he continued to reject her requests. Complainant further avers that S1 continued her advances, and the more he rejected her, the angrier she became and the more she subjected him to unfair treatment in the work facility.
The investigative record reveals that Complainant and S1 previously had a long-term relationship and had lived together for a time. The couple broke up and S1 moved out of the home. Upon notice of Complainant's claims, the Postmaster of the facility conducted an immediate investigation, and interviewed seven prospective witnesses. None of the witnesses reported seeing any harassing behavior on the part of S1. However, several witnesses indicated that Complainant showed jealous behavior towards S1 and believed that he was the harassing party. Witnesses also indicated that: S1 was a good supervisor; Complainant would not follow her instructions; and, Complainant would walk away from S1 when she gave directions and leave work undone for S1 to finish.
While Complainant asserted that S1 was treating him unfairly because he put her out of their home, the Postmaster concluded otherwise, stating "it is my conclusion that there has been NO harassing behavior toward [the complainant] on the part of (S1) and the accusations against her are unfounded. ... His blatant insubordination and disrespect toward a supervisor [acting] is very troubling." In her investigative affidavit, S1 testified that it was she who broke off the relationship with Complainant and moved out on her own accord. S1 further stated that she went out of her way to not interact with Complainant and when she did make a request of him, he disrespected her. S1 also stated that Complainant exhibited anger and jealousy towards her because he wanted to get back together with her. She did invite Complainant to lunch, but only to try to resolve their issues and to be able to work together.
On June 5, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when: beginning on February 12, 2015, and ongoing, after he refused to go out with his supervisor, she accused him of failing to follow her instructions, constantly moved him from one assignment to another, and she became upset and angry towards the him.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant failed to submit any contentions on appeal. The Agency reiterated its position that Complainant failed to show that the alleged actions occurred and that the final decision should be affirmed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of sexual harassment, Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that he is a member of a statutorily protected class; (2) that he was subjected to unwelcome conduct; (3) that the conduct complained of was based on his sex; (4) that the conduct had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982).
In the instant matter, beyond his mere assertions, Complainant failed to present any evidence to support his claim that he was subjected to unwelcome conduct. Moreover, with respect to the fourth prong, there is no evidence of conduct on the part of S1 that affected a term, condition or privilege of Complainant's employment or that had the purpose or effect of unreasonably interfering with his performance and/or creating an intimidating, hostile, or offensive work environment. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__5/22/18________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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