0120055054
02-08-2007
Raymond Say, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Raymond Say,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01200550541
Hearing Nos. 340-2002-03772X; 340-2004-00545X
Agency Nos. 4F-913-0021-02; 4F-913-0244-03
DECISION
On June 21, 2005, complainant filed an appeal from the Administrative
Judge's (AJ)'s 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. On August 10, 2005, the agency
issued a final action, adopting the AJ's decision. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final action.
In complainant's initial claim filed on February 23, 2002 (Agency
No. 4F-913-0021-02), he alleged that he was discriminated against on
the basis of disability (herniated disc) and retaliated against due
to his prior EEO activity when during October 2001 through December of
2001, he was subjected to harassment by his Acting Supervisor (S1) and
a co-worker (W1) who followed him around the agency's Simi Valley Post
Office in California ("facility") clapping and whistling, causing him
to have headaches. Complainant also alleged in a complaint filed on
October 3, 2003 (Agency No. 4F-913-0244-03) that he was discriminated
and retaliated against due to his prior EEO activity when on June 30,
2003, he was allegedly threatened by W1 in connection with an incident in
which W1 took complainant's photograph while at work. Complainant further
alleged discrimination and retaliation for his prior EEO activity when:
(1) on or about December 29, 2004, another co-worker (W2) screamed across
the building at complainant and discussed where complainant lived; (2) on
December 29 and 31, 2004, W1, W2, and S1 were whistling in the workplace;
and (3) on January 29, 2005, W2 made loud comments that complainant was
busy doing nothing.
The record reflects that complainant has been employed at the facility
since 1988 as a Letter Carrier, and he suffered an on-the-job herniated
disc injury in 1997. Due to the injury, complainant became a Modified
Distribution Clerk in 1998 as a rehabilitation position. Complainant's
hours are 12:30 p.m. to 7:00 p.m. Monday through Saturday, and his duties
included working at a desk doing paperwork, answering telephones and other
clerical duties. However, the record reflects that when complainant
returned to work about 6 months after his herniated disc injury, the
facility's Postmaster assigned him to work the registry cage, but he
was unable to do so as bending and twisting caused him too much pain.
Complainant alleged that the Postmaster was upset that he could not
perform that job and the acts of harassment began after that, instigated
by the Postmaster.
The record further reflects that on June 12, 2001, complainant sought
EEO counseling after alleging that W1 made "lewd sexual remarks and
gestures to complainant." On July 24, 2001, complainant entered into
a Settlement Agreement (SA) with the Postmaster, and the SA stated that
"[m]anagement is committed to promptly responding to and investigation
[of] all complaints of workplace harassment." Subsequently, complainant
alleged that S1 and W2 began following him around the facility, clapping
and whisting which caused him to have headaches. W2 admitted that he
whistled, but denied clapping and stated that he was not whisting at
complainant. Hearing Transcript (HT) at 162. Complainant stated that he
left a note for the Postmaster on November 15, 2001 asking him to talk
to S1 about the clapping and whisting; the Postmaster stated that he
did speak to S1and to his knowledge, the clapping and whisting stopped.
AJ's Decision at 4. The Postmaster stated that complainant's note did not
mention W1, and several co-workers confirmed the behavior of W1 and S1.
A co-worker stated she saw W1 banging on trash cans for 30-40 minutes
in October of 2001; in her opinion, W1 and S1did whetever they could to
annoy complainant with unprofessional behavior. This co-worker stated
that she spoke to the Postmaster about this behavior and after that
she did not hear the trash cans banged or the door bell rung constantly
after that. Another co-worker stated that S1 clapped constantly at the
facility in an attempt to irritate complainant. S1 stated that he was
a new supervisor and used clapping as a motivational tool. However,
he stated that when the Postmaster told him to stop, he tried to do so
and denied following complainant around clapping and whistling at him.
The facility's Supervisor of Customer Service (SCS) stated that the issue
of W1 and S1 whistling was brought to his attention, and he asked them
to stop whistling around complainant. HT at 89. The SCS stated that
he thought sometimes W1 and S1 clapped to "tease" complainant, but heard
them clap and whistle when complainant was not around. HT 97-100, 106.
Regarding the incident with the photograph, complainant reported the
incident to the facility's Acting Postmaster and W1 admitted taking the
photograph to show complainant's work habits. W1 deleted the photograph
from his digital camera before it was printed, but he was given a Letter
of Warning for Failure to Follow Instructions/Unsatisfactory Conduct.
In addition, complainant alleged that on December 29, 2004, a facility
Letter Carrier (W2) screamed across the workroom floor at him and that W1,
W2 and S1 were all whistling. Complainant also alleged that these three
(3) employees were also whistling on December 31, 2004, and on January
27, 2005, W2 made loud comments about complainant's doing nothing.
W2 denied whistling to retaliate against complainant and stated that he
was unaware of complainant's EEO activity. W2 stated that when he did
whistle at the facility, it was not directed at complainant. When the
facility Postmaster spoke to W2 about whistling on the workroom floor,
he stopped doing so. W2 stated that the SCS also spoke to him about
his singing and whisting on the workroom floor. The SCS stated that
when he heard singing on the workroom floor, he thought it was W2 due
to his loud voice. HT at 90-91.
Believing he was the victim of discrimination, complainant sought EEO
counseling and filed the aforementioned formal complaints. At the
conclusion of the investigation, 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 and the AJ held a hearing on April 27, 2005 and
issued a decision on June 15, 2005.2 The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged.
The AJ found that complainant was not retaliated against with respect
to complainant's allegation (1) regarding clapping and whistling by W1
and S1. In so finding, the AJ noted that the behavior alleged was not
sufficiently severe or pervasive to alter the conditions of complainant's
behavior. While the AJ found that the clapping and whistling was
inappropriate, the clapping ended when it was brought to the attention
of the Postmaster. Although the AJ found management to be ineffective
in controlling W1 and S1, she did not find the clapping and whistling to
rise to a level sufficiently severe or pervasive to constitute harassment.
AJ's Decision at 15. Regarding the June 30, 2003 photograph incident,
the AJ did not find complainant was retaliated against. In so finding,
the AJ noted that W1 was a co-worker of complainant's, and his actions in
taking the photograph of complainant had no adverse effect on complainant.
The AJ noted W1 was disciplined for his actions and thus the agency
acted promptly and appropriately under the circumstances.
Finally, addressing the actions of W2, the AJ found complainant failed
to demonstrate that he was retaliated against. The AJ found the
whistling actions by W2 to be part of the "childish" behavior by three
(3) employees who enjoy annoying their co-workers. While the AJ found
that W1 and W2 do not believe complainant works hard enough due to his
injury, the record did not support a finding that the alleged behavior
"interfered with complainant's ability to perform his job duties or
deterred him from engaging in the EEO process." AJ's Decision at 16.
While the AJ found that complainant's allegations did not rise to the
level of harassment or retaliation, she also found facility management
to be remiss in allowing these employees to act in a childish manner.
AJ's Decision at 17. The agency's final action adopted the findings
of the AJ. Complainant has made no specific arguments on appeal, other
than to allege that the Postmaster was aware of the acts of harassment
and encouraged it, while co-workers were afraid to be witnesses for fear
of retaliation.
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).
In general, an employer creates a hostile work environment in violation
of Title VII when its actions are based on a protected characteristic
and are so severe or pervasive that they alter the conditions of
the employee's employment and create an abusive working environment.
See Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998). A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct is
severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Whether the harassment is sufficiently severe to trigger a violation of
Title VII must be determined by looking at all of the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee's work
performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993);
Enforcement Guidance on Harris v. Forklift Systems, Inc. EEOC Notice
No. 915.002 (March 8, 1994) at 3, 6. In Faragher v. City of Boca Raton,
118 S. Ct. 2275 (1998), the Supreme Court stated that: "simple teasing,
offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the 'terms and conditions
of employment."' Harassment is actionable only if the harassment to which
the complainant has been subjected was sufficiently severe or pervasive to
alter the conditions of the complainant's employment. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
After consideration of the evidence of record, the Commission concurs with
the AJ's finding that the alleged conduct was insufficiently severe or
pervasive to constitute a hostile work environment. We find complainant
did not establish a prima facie case of harassment. There is no doubt
that the alleged incidents were childish and inappropriate and done
to annoy complainant and other co-workers. However, even assuming the
alleged conduct is in fact sufficiently severe or pervasive to constitute
harassment, there is nothing to suggest that the conduct was taken in
retaliation for complainant's prior EEO activity. Rather, as found by
the AJ, the evidence suggests the actions by W1, W2 and S1 were taken
due to the mistaken perception that complainant was not working as hard
as each of them.
Accordingly, the Commission AFFIRMS the agency's final action implementing
the AJ's decision finding no discrimination.
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 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____2-8-07_________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 The AJ noted in her decision that in his complaints, complainant
alleged disability (herniated disc) as a basis of discrimination.
The agency filed a motion for summary judgment on complainant's claims,
and the AJ issued an order on March 24, 2005 granting the agency's motion
regarding complainant's allegation under the Rehabilitation Act. In so
finding, the AJ noted that complainant failed to proffer evidence that
he is substantially limited in any major life activities. As such, the
AJ found that complainant was allowed to present evidence with respect
to her allegations of retaliation. We note that on appeal, complainant
has not challenged the AJ's order regarding his allegations of disability
discrimination. The Commission has the discretion to review only those
issues specifically raised in an appeal. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999).
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0120055054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055054