0120081065
08-25-2009
William E. Turner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
William E. Turner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120081065
Hearing No. 471-2007-00018X
Agency No. 1J-482-0008-06
DECISION
On December 19, 2007, complainant filed an appeal from the agency's
December 5, 2007 final order 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. 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 order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge's (AJ) decision, finding that
complainant was not subjected to discrimination in reprisal for his
prior protected EEO activity, is supported by substantial evidence in
the record.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Mail Handler at the agency's Royal Oak Processing and
Distribution Center in Troy, Michigan. The record reflects that on or
around November 2, 2005, complainant informed the Supervisor, Distribution
Operations (SDO) that a female employee (Employee 1) had allegedly hit
some equipment that caused a hamper to hit his leg. SDO spoke with
Employee 1 about the incident, and she denied hitting complainant.
On November 3, 2005, Employee 1 asked to meet with complainant and SDO
to discuss the November 2, 2005 incident. However, complainant refused
to attend a meeting with Employee 1 present, and SDO instead met with
them individually. During SDO's meeting with Employee 1, she informed
SDO that complainant had previously referred to her as a " real devious
bitch" when she was an acting supervisor, obtained her address, sent
her flowers on multiple occasions, purchased her jewelry, and provided
her with prescription drugs. She showed some of these items to SDO and
further alleged that complainant had obtained the address of at least
one other female employee (Employee 2) and purchased flowers for her.
Although Employee 1 did not specifically state that she felt that she
was being subjected to sexual harassment, SDO subsequently informed
complainant that Employee 1 had made allegations against him and that
SDO had initiated an investigation into the allegations. That same day,
SDO informed complainant that he was being temporarily reassigned during
the investigation to a different building known as the Troy Automated
Facility (TAF), and the Lead Manager of Distribution Operations (MDO1)
requested that Human Resources conduct a sexual harassment investigation.
From November 4, 2005 through November 22, 2005, two Labor Relations
Specialists conducted a sexual harassment investigation. During a
meeting with the Labor Relations Specialists on November 22, 2005,
Employee 1 stated that she wanted the investigation to stop because she
did not believe she had been sexually harassed by complainant. On or
around December 12, 2005, the Union President asked MDO1 to arrange a
meeting between her, complainant, Employee 1, and a management official.
On December 15, 2005, a meeting was convened attended by the Union
President, complainant, Employee 1, and another Manager of Distribution
Operations (MDO2). During the meeting, complainant and Employee 1
indicated that they could resolve their differences and work in the same
building. After Employee 1 left the meeting room, MDO2 and complainant
discussed the fact that complainant had a pending EEO complaint against
SDO involving sexual harassment. On December 28, 2005, complainant
returned to work at the Royal Oak Processing and Distribution Center.
On February 2, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of sex (male) and in reprisal for
prior protected EEO activity arising under Title VII when, on November 3,
2005, he was temporarily reassigned to another work location.
The agency initially dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. Turner v. United States
Postal Service, Agency No. 1J-482-0008-06 (February 16, 2006). On appeal,
the Commission reversed the agency's final decision and remanded the
complaint to the agency for further processing in accordance with 29
C.F.R. � 1614.108. Turner v. United States Postal Service, EEOC Appeal
No. 0120062616 (July 16, 2006).
On remand, at the conclusion of the investigation, complainant was
provided with a copy of the report of investigation and a notice of his
right to request a hearing before an AJ. Complainant timely requested
a hearing. On October 15, 2007, the AJ issued a decision granting, in
part, and denying, in part, the agency's motion for summary judgment.
The AJ granted the agency's motion with respect to complainant's sex
discrimination claim but denied the agency's motion regarding his
retaliation claim.
The AJ held a hearing on the retaliation claim from October 22, 2007
through October 24, 2007 and issued a decision on November 29, 2007,
finding no discrimination. Specifically, the AJ's decision found
that the agency articulated legitimate, nondiscriminatory reasons for
reassigning complainant to another work location from November 3, 2005
through December 27, 2005. The AJ further found that complainant failed
to establish that the agency's reasons for reassigning him were a pretext
for unlawful discrimination in reprisal for his prior EEO activity.
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.
CONTENTIONS ON APPEAL
On appeal, through his representative, complainant argues that the AJ
erred in finding that he was not subjected to discriminatory retaliation.1
Specifically, complainant argues that the AJ failed to analyze whether the
agency's actions would have dissuaded a reasonable employee from making or
supporting a charge of discrimination and that the AJ's decision lacked
"substantial support in the record." He argues that he was subjected
to retaliation, "fueled by the retaliatory animus of [SDO] and [MDO1],"
when he was subjected to an investigation, management transferred him to
the TAF, and management failed to return him to his original position
from the TAF in a timely manner. He further argues that the agency's
actions subjected him to a hostile work environment.
In response, the agency urges the Commission to affirm its final action
because the AJ's post-hearing finding of no discrimination is supported
by substantial evidence in the record. The agency argues that the AJ
properly analyzed the case and objects to complainant's argument that
his claim should have been analyzed as an allegation of retaliatory
harassment.
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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of retaliation by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas, 411
U.S. at 802). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in
a protected activity; (2) his employer was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment by
his employer; 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).
The Commission has stated that adverse actions need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. EEOC Compliance
Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998);
see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)
(finding that the anti-retaliation provision protects individuals from a
retaliatory action that a reasonable person would have found "materially
adverse," which in the retaliation context means that the action might
have deterred a reasonable person from opposing discrimination or
participating in the EEO process).
Assuming arguendo that complainant established a prima facie case
of discrimination based on retaliation for his prior protected EEO
activity, we concur with the AJ's determination that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
SDO testified at the hearing that he made the decision to temporarily
reassign complainant to the TAF because he was concerned that Employee
1 was being subjected to a hostile work environment, and he wanted to
separate complainant and Employee 1 while he conducted an investigation.
SDO further testified that he felt the need to conduct an investigation
"because so many allegations were brought forth." Agency officials
testified that complainant did not return to the Royal Oak facility due
to the time it was taking to conduct the investigation.
MDO2 testified at the hearing that complainant was not allowed to return
to the Royal Oak facility immediately after he and Employee 1 resolved
their differences during the December 15, 2005 meeting because complainant
had informed MDO2 after the meeting that he had an EEO pending against
SDO involving sexual harassment. MDO2 testified that she informed
complainant that he could not return to the Royal Oak facility until
she "found out what to do" because she did not want to return him to a
situation if "there's sexual harassment going on." MDO2 testified that
she then spoke with MDO1 who indicated that complainant could return
to work. MDO2 further testified that she later received a call from a
supervisor at the TAF stating that complainant wanted to remain there.
As a result, complainant continued to work at the TAF until he returned
to the Royal Oak facility on December 28, 2005.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we find that the AJ's determination that
complainant failed to establish pretext is supported by substantial
evidence in the record. On appeal, complainant provides no evidence
of pretext and does not present any information that would suggest
that the agency's decision to reassign him to the TAF was motivated by
discriminatory animus. We note that agency policies require management
officials who receive information regarding allegations of sexual
harassment to conduct a thorough inquiry and determine whether the
employees need to be moved apart. We further note that SDO and MDO2
testified that SDO had the authority to reassign complainant while the
investigation occurred. Although complainant disputes the testimony
provided by agency officials at the hearing and alleges that management
officials were retaliating against him for his prior EEO activity in
a complaint involving MDO1, the AJ found that the management officials
provided credible testimony. We do not find evidence in the record that
undermines the testimony provided by management officials at the hearing.
Finally, we find that the record does not reflect that complainant
had alleged, prior to the instant appeal, that he was subjected to
retaliatory harassment. However, even if complainant had alleged that he
was subjected to a hostile work environment, we find under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that
complainant's claim of hostile work environment must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994). A prima facie case of hostile work environment is
precluded based on our finding that complainant failed to establish that
any of the actions taken by the agency were motivated by discriminatory
animus or retaliatory motive. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
factual findings are supported by substantial evidence in the record.
We discern no basis to disturb the AJ's decision. Accordingly, after
a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in the
decision, the agency's final order is AFFIRMED.
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 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 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
______08/25/09____________
Date
1 On appeal, complainant does not contest the AJ's decision to
issue a decision without a hearing with respect to his allegation
of discrimination based on sex. Therefore, the Commission will not
address this allegation. See EEOC Management Directive 110, Chapter 9,
� IV.A. (November 9, 1999).
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0120081065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081065