Kenneth Bailey v. United States Postal Service
01A45471
November 29, 2004
.
Kenneth Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45471
Agency No. 4E-553-0039-02
Hearing No. 2260-2003-09203X
DECISION
Complainant timely initiated an appeal from the agency’s final action
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.
The appeal is accepted pursuant to 29 C.F.R. § 1614.405.
During the relevant time, complainant was a Letter Carrier at the agency’s
Richfield Station in Richfield, Minnesota.<1> Complainant filed a formal
EEO complaint on July 25, 2002, claiming that the agency discriminated
against him on the bases of race (African-American) and in reprisal for
prior EEO activity when he was subjected to a hostile work environment.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
In her decision, the AJ determined that complainant’s complaint was
comprised of a hostile environment claim involving the following six
alleged discriminatory events:
(1) on November 8, 2001, complainant’s Manager issued complainant a
14-day no-time off suspension for a verbal altercation that he had with
a co-worker;
(2) in February 2002, complainant’s Manager and complainant had a
disagreement regarding complainant being questioned when the Manager
had been trying to locate him. The record reveals that the Manager
then sent complainant home for refusing to carry mail in overtime for
a neighboring route;<2>
(3) on June 24, 2002, an action figure doll painted to resemble a
bloodied, black letter carrier was found with a noose around its neck
in a postal vehicle by a female carrier;
(4) on June 13, 2002, complainant’s manager issued complainant a 14-day
no-time off suspension for failure to follow instructions.
(5) on August 7, 2002, complainant’s first-level supervisor issued
complainant a 14-day no-time off suspension for failure to properly
complete the duties of a letter carrier.
(6) on September 5, 2002, complainant’s first-level supervisor placed
complainant in an AWOL status for not reporting to work since August
26, 2002, and not providing adequate medical documentation to support
his absence.
The AJ determined that all of the incidents, with the exception
of the action doll figure incident identified in claim (3), were
agency disciplinary actions; that the agency articulated legitimate,
non-discriminatory reasons for its actions; and that complainant did
not establish that these reasons were a pretext for discrimination.
Regarding claim (1), the AJ noted that on November 8, 2001,
complainant’s former Manager issued complainant a 14-day suspension
for being involved in an altercation with a co-worker.<3> The former
Manager discussed the altercation with the labor department and it was
concluded that the 14-day suspension was appropriate due to the severity
of the incident. The former Manager stated that although she did not
witness the incident, she was informed that complainant was requested
to stop the altercation with the co-worker but that complainant did
not stop and made a statement that he would “finish it.” Furthermore,
the former Manager stated that she met with complainant to discuss the
altercation incident, complainant showed no remorse.
Regarding claims (2) and (4), the Manager testified that on March 15,
2002, he found mail in complainant’s truck but was unable to locate
complainant. The Manager further stated “when I couldn’t locate
[complainant] after a half hour I knew I had a problem…I went on line
to our TAX computer, which is an on-line time keeping system, and it
showed [complainant] was still clocked on his route, but yet he wasn’t
in the facility.” The Manager stated that lunch breaks last for only
one-half hour, and so that after an hour had passed, he was concerned
about complainant’s whereabouts. The Manager stated that after he located
complainant, he questioned complainant , and that complainant informed
him that he combined his lunch break and his two ten-minute breaks.
The Manager stated that he informed complainant such action was not
standard policy and was against agency regulations. The Manager stated
that during their conversation, complainant “immediately became upset
with me and started swearing at me and told me that I was singling him
out and I better be doing this for all these f-ing people, that he can
combine his breaks if he wanted to and so forth.” The Manager stated
that he instructed complainant to punch out after he asked him to carry
the overtime off the other route but complainant declined, stating that
he was going to sit on his own route, The Manager stated that after
he informed complainant that he had to leave the premises, complainant
stated he would only leave if inspectors were called, and that he would
have to be forced to leave. The Manager stated that after he asked
complainant to leave the premises several times, complainant left the
premises without punching out. Furthermore, the Manager stated that
on June 13, 2002, he issued complainant a 14-day no-time off suspension
for failure to follow instructions.<4>
Regarding claim (5), the Manager testified that on August 7, 2002, he
issued complainant a 14-day no-time off suspension for failure to properly
complete the duties of a letter carrier.<5> The Manager testified that
upon coming to work one Monday morning, he discovered mail in a vehicle
that had been left since the preceding Saturday, and that “we went
through the tub and the addresses on the raw mail that were picked up
for collection on Saturday were from route 2323, [complainant’s] route.”
The Manager stated that he, complainant’s first-level Supervisor, and a
union steward gave complainant “a day in court.” The Manager stated
that it was his recollection that complainant stated that if he were
disciplined, agency management would be wasting its time. Furthermore,
the Manager testified that he unsuccessfully attempted to have complainant
cooperate.
Regarding claim (6), the AJ noted the Manager testified that on September
5, 2002, he placed complainant in an AWOL status for not reporting to work
since August 26, 2002, because “he failed to provide the documentation
that I requested” to support his absence. The Manager further testified
that he retracted the AWOL discipline “after the fact when [Complainant]
was at Lake Street that I did get documentation from [Union Steward]
to support his absence at that point.”
Regarding claim (3), the AJ concluded that the symbol of the action figure
doll dressed as a Letter Carrier was obviously aimed at complainant
because he was one of the two African-American Letter Carriers at the
agency’s Richfield Station. The AJ further concluded that the incident
created a hostile work environment, even though complainant was not
at work the day the action figure doll was discovered. The AJ found
that complainant did not see the doll, but that the knowledge of its
existence alone is sufficient to create a hostile work environment.
However, the AJ found that following the discovery of the action figure
doll, the agency took immediate and appropriate action as follows:
an investigation by the Postal Investigators; interviews of employees
by the Workplace Improvement Analyst, service talks; attempts to get
fingerprints; and the posting of an award. Moreover, the AJ found that
there were no subsequent acts of this nature.
Moreover, the AJ found that if complainant had requested a temporary
transfer to a different facility, that it would have been a good idea
for the agency to make such an arrangement , for a reasonable period.
The AJ found, however, that there was no evidence in record to reflect
complainant made a request for a transfer.
As for complainant’s claim of discrimination on the basis of reprisal,
the AJ found that complainant established a causal link between his
protected activity and the alleged adverse actions taken against him.
The AJ noted that agency management was aware of his participation
in the EEO complaint process, and the disciplinary actions occurred
close in time to the period when the agency was aware of complainant’s
participation in the EEO process. The AJ reiterated, however, that
the agency articulated legitimate non-discriminatory reasons for the
disciplinary actions taken against complainant, and that complainant
did not establish that the reasons were a pretext for discrimination.
The agency’s final action implemented the AJ’s decision.
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.
In considering whether the alleged discriminatory actions at issue
constitute actionable harassment, the Commission notes that in Harris
v. Forklift Systems, Inc. 510 U.S. 17 (1993), the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986), that harassment is actionable if it is sufficiently severe
or pervasive that it results in an alteration of the conditions of
the complainant’s employment. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.
To establish a claim of harassment a complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected
to unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, 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, inter
alia, 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).
After a careful review of the record, the Commission finds that the AJ’s
findings of fact are supported by substantial evidence in the record
and that the AJ’s decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws.
Regarding claim (3), the Commission agrees with the AJ’s determination
that the incident regarding the action figure doll is one where
complainant could reasonably have felt threatened upon learning of
this incident. Nonetheless, despite the clearly offensive nature of
the display of such an action figure doll in the workplace, we agree
with the AJ’s finding that complainant failed to establish a basis
of imputing employer liability concerning the discovery of the action
figure doll. The Commission’s regulations require an employer to take
“immediate and appropriate” corrective action once it knows or has
reason to know that sexual harassment has occurred. See 29 C.F.R. §
1604.11(e). Although this phrase is not defined in the regulations,
the Commission has expressed the agency’s obligation as being “prompt
remedial action reasonably calculated to end the harassment.” See
Rodriguez v. Department of Veterans Affairs, EEOC Appeal No. 01953850
(August 29, 1996). The Commission has held that appropriate remedial
action depends on the particular facts of the case; more specifically,
the severity and persistence of the harassment and the effectiveness
of any initial remedial steps. Taylor v. Dept. of the Air Force, EEOC
Request No. 05920194 (July 8, 1992).
The evidence in the present case reveals that when the agency learned
of the discovery of the action figure doll, it took prompt action by
conducting an investigation; interviewing employees; holding service
talks; sending the action figure doll to the National Forensic Laboratory
for examination of fingerprints and other evidentiary significance; and
posting a reward notice offering $2,000.00 for information relating to
the action figure doll.
In summary, we note that complainant failed to present evidence that
any of the agency’s actions were in retaliation for complainant’s
prior EEO activity or were motivated by discriminatory animus toward
complainant’s race. We discern no basis to disturb the AJ’s decision.
Therefore, after a careful review of the record, we AFFIRM the agency’s
final action implementing the AJ’s finding of 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
November 29, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant1The record reveals that on September 7,
2002, complainant was transferred to the agency’s Lake Street Station
after a successful bid for the position of a letter carrier.
2The AJ identified the date of alleged discriminatory event as February
2002; however, it appears from the record that this alleged event occurred
on or about March 15, 2002.
3The record reveals that complainant’s November 8, 2001 14-day suspension
was reduced to a letter of warning during the grievance process.
4The record reveals that complainant, through the union, filed a grievance
concerning the June 13, 2002 14-day no-time off suspension. The record
further reveals that the Manager reduced complainant’s suspension to a
job discussion
5The record reveals that complainant’s August 7, 2002 14-day no-time
off suspension was settled at Step A grievance.
