Xavier P., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120132144 Hearing No. 420-2012-00163X Agency No. 4G-350-0024-11 DECISION On May 7, 2013, Complainant filed an appeal from the Agency's April 4, 2013 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time Mail Processing Clerk at the Agency's Post Office facility in Dothan, Alabama. On July 21, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, from August 2010 to May 2011, Complainant was subjected to a hostile work environment when Caucasian employees in his work area wore t-shirts featuring the Confederate flag several times a month, and management took no action despite receiving complaints about it. Complainant also alleged that management ignored the issue in retaliation for his prior EEO activity. The Agency initially dismissed the matter. However, the Commission, on appeal, reversed the Agency's decision to dismiss the complaint for failure to state a claim. Dawson v. U.S. Postal Serv., EEOC Appeal No. 0120114186 (Feb. 8, 2012). However, Complainant explained that the display of the Confederate flag is a "highly controversial and emotional topic." He noted that he was "keenly aware that the Confederate Battle Flag has been appropriated by the Ku Klux Klan and other racist hate groups." Agreeing with Complainant that there is support for his assertion that Confederate flag has been widely used as a symbol of racism against African Americans, we reversed the Agency's dismissal and remanded the matter for an investigation. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency's September 12, 2012 motion for a decision without a hearing, and issued a decision by summary judgment in favor of the Agency on March 21, 2013. The AJ determined that Complainant established that he was subjected to discriminatory harassment because of his race, but not based on his prior EEO activity. However, the AJ concluded that the Agency should not be held liable for the harassment because management took prompt and effective action to end the harassment once informed of the issue. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record, we find that neither party has identified material facts in dispute, the record is adequately developed. Therefore, we agree with the AJ's determination that this case was ripe for a decision by summary judgment. We do not, however, agree with the AJ's legal conclusions based on the facts as presented in the record. It is well-settled that harassment based on an individual's race is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, the complainant must show that: (1) he belongs to the statutorily protected class; (2) he was subjected to unwelcome conduct related to his membership in that class; (3) the harassment complained of was based on race; (4) the harassment had the purpose or effect of unreasonably interfering with his 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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The AJ found that Complainant established elements (1) - (4) of his case of harassment based on race. The Agency adopted the AJ's findings. As such, the only issue before the Commission is whether Complainant established the 5th element of his case of harassment based on his race - whether there is basis for imputing liability to the Agency. In the case of co-worker harassment, an Agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't of the Air Force, EEOC Request No. 05920194 (July 8, 1992). The AJ determined, and the undisputed evidence of record supports, that two clerks working in Complainant's workplace ("Clerk 1 and 2"; both Caucasian) wore t-shirts to work featuring the confederate flag on August 29, 2010; November 15, 2010; January 24, 2011; January 31, 2011; February 14, 2011; February 28, 2011; March 12, 2011; March 25, 2011; March 26, 2011; March 29, 2011; April 7, 2011; April 20, 2011; April 25, 2011; and May 3, 2011. On March 15, 2011, the Union President, on behalf of Complainant, informed the Postmaster (Caucasian) that "some employees" found the t-shirts offensive and requested that management take immediate action to prohibit these t-shirts in the workplace. The Postmaster claims he then directed a subordinate supervisor to conduct a stand-up talk for all employees concerning workplace attire. While it is unclear when this talk occurred, it is undisputed that there was no mention of Confederate flag symbols. Instead, employees were told not to wear revealing clothing or clothing with "political" messages. In his affidavit made during the investigation, the Postmaster specifically confirms that employees were never instructed not to wear or display images of the Confederate flag. On April 18, 2011, the Union President followed up with a letter to the Postmaster that was hand-delivered by an agency employee. A statement from that employee indicates that the Postmaster opened the letter in his presence and asked who was complaining about the t-shirts. Clerk 1 was also in the Postmaster's office at the time, wearing a t-shirt featuring the Confederate flag on the back. The Postmaster, according to the witness, asked Clerk 1 to turn around and then said, "there is nothing wrong with this shirt." The Postmaster then asked the witness if Complainant was the one complaining about the shirts. In his affidavit taken during the investigation, the Postmaster essentially confirms the correctness of the witness' account. He said that he remembered saying that he was not bothered by Clerk 1's shirt and did not find it to be "political" and was "not certain what rights [Clerk 1 had] to wear the shirt." On May 3, 2011, the same day Complainant filed a grievance over the Confederate shirts, the Postmaster sent Clerk 1, who was wearing a Confederate flag shirt, home to change. The record shows that Clerk 1 also later filed a grievance over being sent home. Records from that grievance show that matter was settled by paying Clerk 1 for the time he was sent home because he had not previously been instructed that wearing Confederate symbols was prohibited. Based on our review of the record, we find that the AJ erred as a matter of law in determining that despite finding Complainant was subjected to racial harassment, the Agency was not liable because management took immediate and appropriate corrective action. As noted in the above recitation of the undisputed evidence, management failed to take any action to prohibit the wearing or displaying of the Confederate flag when it first was notified of the concern in March 2011. While the AJ pointed to a stand-up talk on work attire as a corrective step, the evidence clearly establishes that clothing with Confederate symbols was not discussed at this talk. In fact, the Postmaster expressly concedes employees were never instructed not to wear or display images of the Confederate flag. Moreover, the evidence shows that the Postmaster, in fact, exacerbated the situation in mid-April 2011, upon receiving a follow-up complaint about the Confederate flag shirts, by examining Clerk 1, who was wearing the shirt, and letting him know, as well as another witness, that there was "nothing wrong" with wearing the shirt. In fact, the Postmaster took no action to address the issue for nearly two months, until prompted by Complainant filing a union grievance over the matter in May 2011. It was only at this point that the Postmaster sent Clerk 1 home to change. Based on this evidence, we conclude that the Agency has failed to meet its burden of establishing its affirmative defense against liability in this matter. Accordingly, we reverse the AJ's conclusion to the contrary. As such, we conclude that Complainant has established that he was subjected to unlawful harassment based on race and the Agency is liable for the harassment.1 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's Final Order and REMAND the matter in accordance with the ORDER below. ORDER The Agency is ordered to take the following remedial action: 1. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of his right to submit any additional objective evidence2 (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete an investigation on Complainant's entitlement to compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's evidence. Thereafter, the Agency shall issue a decision on Complainant's entitlement to compensatory damages in accordance with 29 C.F.R. § 1614.110. 2. Within fifteen (15) calendar days of the date this decision becomes final, the Postmaster of the Dothan Post Office shall issue a written directive prohibiting employees from wearing or otherwise displaying Confederate symbols in the workplace or on Agency property. 3. Within sixty (60) calendar days of the date this decision becomes final, the Agency is directed to conduct EEO training for the Postmaster found to have violated Title VII, focusing on his responsibilities as a manager to respond appropriately to complaints of discriminatory harassment. The Agency shall also conduct EEO sensitivity training for all the employees in the Dothan Post Office, focusing on hostile or offensive work environment issues. 4. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall consider taking disciplinary action against the Postmaster for his failure to properly respond to the hostile work environment complaint in this case. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Post Office facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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), at 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) 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 November 1, 2013 __________________ Date 1 Because we find that the Agency subjected Complainant to harassment based on his race, we need not address his additional reprisal claim over the same matter. 2 We note that Complainant already submitted some medical and other evidence in support of his claim of emotional distress. This evidence already submitted should be considered along with any additional evidence submitted in adjudicating his compensatory damages claim. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132144 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132144