Winfred H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 14, 20180120171963 (E.E.O.C. Nov. 14, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Winfred H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120171963 Agency No. 1C371006915 DECISION On May 11, 2017, 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 April 12, 2017, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency’s Processing and Distribution Center in Chattanooga, Tennessee. On November 2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African-American), disability (shoulder injury), age (62), and in reprisal for prior protected EEO activity when, since July 29, 2009, and continuing, management has not recognized Complainant’s 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. 0120171963 2 shoulder injury as an assault by a co-worker and on dates to be specified, Complainant was assaulted and management did not report these assaults properly. On December 17, 2015, the Agency dismissed the complaint for untimely EEO Counselor contact. Complainant appealed, and in Winfred H. v. U.S. Postal Serv., EEOC Appeal No. 0120161148 (Apr. 14, 2016), the Commission reversed the Agency’s dismissal and remanded the matter for further processing. In its decision, the Commission concluded that a fair reading of his formal complaint demonstrated that Complainant claimed that he was subjected to a series of related incidents of harassment from July 2009 through present. Following a “partially completed” investigation, the Agency dismissed the complaint again for several reasons. Complainant appealed and, in Winfred H. v. U.S. Postal Serv., EEOC Appeal No. 0120162464 (Oct. 20, 2016), the Commission again reversed the Agency’s dismissal and remanded the matter for a full investigation. A comprehensive review of the record demonstrates that Complainant’s shoulder injury first arose in May 2009. On February 23, 2011, Complainant was working the floor when he claimed that his supervisor (S1) approached him from behind, placed her hands on both of his arms, turned him around, and then headbutted him in his injured right shoulder. Complainant asserted that the force knocked him off balance, caused him to stumble back approximately nine feet, and caused severe pain in his shoulder, neck, and back. On March 3, 2011, Complainant contacted the police to report the assault. In the police report, Complainant claimed that that a coworker (CW2) witnessed the assault. The police officer spoke with CW2, who said that he saw S1 headbutt Complainant, but he was not sure whether it was intentional. Complainant subsequently filed a civil action regarding the matter. Complainant claimed that S1 was arrested and indicted for assault, but that the State later dropped the charges. In May 2011, the United States Postal Inspection Service investigated the allegation and received written statements from Complainant, S1, and CW2. S1 stated that she accidentally bumped into Complainant while walking around the corner of a cage, said excuse me, and apologized. CW2 said that S1 was coming around a bird cage and hit Complainant on the right shoulder; however, the cage was blocking S1’s view and she could not see Complainant. Management ultimately could not substantiate Complainant’s allegations of an intentional headbutt and determined that no disciplinary action was warranted. Complainant alleged another incident occurred in June 2011, in which S1 again assaulted him and made light of the situation. Complainant alleges that the incidents exacerbated his condition and that the Agency did not properly report the alleged assaults. For example, in various workers’ compensation paperwork, Complainant claims that the February 23, 2011 incident was coded as “violence by postal employee,” but that management had attempted to change it to “industrial accidents.” Complainant alleges that these actions prevented him from obtaining proper compensation. For instance, workers’ compensation is paying his medical bills, but will not compensate Complainant personally. 0120171963 3 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 (AJ).2 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. The Agency first concluded that Complainant failed to establish that he was subjected to unlawful harassment because he did not demonstrate that the alleged incidents were sufficiently severe or pervasive or that the Agency’s actions were based on his protected bases. In addition, the Agency determined that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency misrepresented his claims and information in the record. Complainant argues that his allegation should have been framed as a failure by management to recognize that the assaults were an attack by a supervisor and the Agency’s subsequent failure to properly code the assaults as such. Complainant then argues that CW2’s statement, as it appears in the record, is not authentic as it lacks a notation from the postal inspector indicating that the statement was false and made under improper procedures and duress. Complainant submits a different version of CW2’s statement which contains a typewritten notation along the top of the page that states, without evidence, that another employee wrote the statement for CW2 to save S1’s job and that the statement should have been taken by an “interper [sic] for the hearing Impaired [sic].” Additionally, Complainant claims that the management officials provided inconsistent and false information. Complainant contends that the record shows that he was subjected to discrimination and reprisal and that he continues to face retaliation. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). 2 Complainant did not submit an affidavit in this matter prior to the Investigator’s completion of the investigation, although the Investigator requested it several times. Complainant later submitted an affidavit, and it was included as part of the record as a post-investigative document. 0120171963 4 Hostile Work Environment To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). An agency is liable for unlawful harassment by a co-worker if it knew or should have known of the alleged harassment, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1604.11(d). In short, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In the instant case, Complainant has not shown that the alleged events were sufficiently severe or pervasive to establish a hostile work environment. Further, the Commission finds that Complainant failed to demonstrate the conduct at issue was based on discriminatory or retaliatory animus. We note that the record is unclear as to whether Complainant was assaulted in the first place or that the incidents occurred as alleged by Complainant. Furthermore, with respect to his claims that management did not report or code the incidents properly, the matter was raised with the U.S. Postal Inspection Service which conducted an investigation into the matter and presented management with an investigative memorandum. Ultimately, after reviewing the matter, management determined that no disciplinary action was warranted as Complainant’s assault allegations were not substantiated. Complainant later filed an action against S1, but charges were subsequently dropped. Complainant has presented no evidence in support of his claim that management improperly handled his allegations. While Complainant claims that CW2’s statement, which fails to support Complainant’s allegation, was altered to omit the Postal Inspector’s notes, the Commission is not in a position to determine the authenticity of Complainant’s exhibit, particularly where, as here, Complainant failed to request a hearing before an AJ so that he could explore the authenticity of such documents. We further find unavailing Complainant’s argument that S1’s indictment by a grand jury proves he was assaulted and therefore the Agency was wrong to minimize his claims. The Commission finds that there is insufficient evidence in the record that demonstrates Complainant was subjected to discriminatory or retaliatory harassment. 0120171963 5 Specifically, Complainant does not demonstrate that the alleged harassing conduct was premised on his race, disability, age, or in retaliation for prior EEO activity. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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. 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. 0120171963 6 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 November 14, 2018 Date Copy with citationCopy as parenthetical citation