U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ahmad S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120170386 Agency No. 4B-100-0037-16 DECISION Complainant timely 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 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission REVERSES in part and AFFIRMS in part the Agency's final decision and remands the decision for an investigation on damages. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant was not subjected to disparate treatment and a hostile work environment, as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales Service and Distribution Clerk at the Agency's Kingsbridge Station in Bronx, New York. Report of Investigation (ROI), at 5. Complainant attested that he was first diagnosed with Irritable Bowel Syndrome (IBS) in 2010 and provided medical documentation about his condition to the Agency on June 15, 2015, October 2015, and other dates. Id. at 62. According to Complainant's doctor, Complainant suffered from stomach bloating and chronic gas, which was the result of his IBS. Id. at 27. Complainant averred that on December 24, 2015, he overheard another Clerk say that "management was going to take him out and send him somewhere far." Complainant believed the comments were made in reference to his condition. Thereafter, on January 22, 2016, and April 6, 2016, Complainant provided written statements to the Manager of Customer Service and another management official. Id. at 122, 105. Therein, Complainant wrote that he continued to overhear coworkers say there were going to walk out of the building due to his condition. Id. Complainant further averred that a coworker yelled about him laughing, "just because he's sick, he thinks he's going to stay here." Id. at 66-67. Complainant additionally attested that coworkers continually accused him of smelling badly even when an odor was not emanating from him. Id. On May 12, 2016, Complainant filled out the Agency's "Report of Hazard, Unsafe Condition or Practice" form. Id. at 108. Therein, Complainant accused a coworker of creating an unsafe and a hostile work environment for him. Id. Complainant specifically maintained that the coworker continuously threatened to do a walk-out and said that he (Complainant) would be reassigned due to his condition. Id. Subsequently, the Manager of Customer Service made the decision to reassign Complainant to another work facility after Complainant stated, "I am not sure what will happen to me when I leave work and I don't feel safe." Id. at 79. The Manger of Customer Service affirmed that she is responsible for ensuring that all employees are safe at work in accordance with Agency policy. Id. Complainant, however, did not agree with the Manager of Customer Service's decision to reassign him to another facility. Complainant maintained that during the meeting that took place on May 26, 2016, he specifically told the Manger of Customer Service that he did not feel threatened and that he did not wish to be reassigned. Id. at 72. Notwithstanding, on May 26, 2016, Complainant was notified to report to another Postal facility effective May 28, 2016. The Coworker that Complainant accused of harassment was not reassigned as well. On April 23, 2016, Complainant filed an EEO complaint (as subsequently amended) alleging that the Agency discriminated against him on the basis of disability (IBS) when: 1. On December 24, 2015, he overheard management say when "they take him out of here they are going to send him somewhere far;" 2. He was subjected to constant belittling comments from coworkers regarding his personal hygiene, and management refused to address the issue; and 3. On May 26, 2016, he was notified to report to another Postal facility effective May 28, 2016. Following 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). 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). Therein, the Agency concluded that Complainant had failed to prove that the Agency subjected him to discrimination as alleged. The Agency found, with regard to claim 3, that it had articulated a legitimate nondiscriminatory reason, which Complainant did not establish was pretext for discrimination. The Agency noted that it reassigned Complainant because he wrote that he felt threatened and unsafe when leaving work. In addressing Complainant's claims of a hostile work environment (claims 1-3), the Agency found no evidence that the comments were made about Complainant, as he alleged. The Agency observed that the accused identified coworkers denied making the comments about Complainant's hygiene. The Agency found that even if the events occurred as alleged, they were insufficiently severe or pervasive to rise to the level of a hostile work environment. CONTENTIONS ON APPEAL On appeal, Complainant states that he provided multiple letters to management documenting his IBS. Complainant maintains that his IBS substantially limits a major bodily function, and therefore he clearly established that he is an individual with a disability under the Rehabilitation Act. Complainant further maintains that he did not communicate to the Manager of Customer Services that he felt threatened and unsafe while leaving work. The Agency did not file a brief in response to Complainant's appeal. STANDARD OF REVIEW 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.. 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"). ANALYSIS AND FINDINGS Reprisal We note that Complainant did not allege reprisal as a basis in his complaint. However, it is apparent throughout the record that Complainant is alleging that he wrongly was reassigned to another facility after he reported that he had been subjected to a hostile work environment by a coworker, based on his disability. As such, in the interest of judicial economy, and because there is adequate evidence in the record before us, we shall also consider reprisal as a basis herein. Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment reprisal discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that s/he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In the instant case, we note that Complainant engaged in protected EEO activity when he reported to the Manager of Customer Service on May 12, 2016, that another coworker had been subjecting him to a hostile work environment based on his disability. ROI, at 108. Reporting discriminatory harassment is protected EEO activity. See Bailin v. Soc. Sec. Admin., EEOC Appeal No. 0120080181 (July 14, 2011); Barrios v. Dep't of Homeland Sec., EEOC Appeal No. 0120061198 (Dec. 10, 2007). Days later, on May 16, 2016, the Manager of Customer Service notified Complainant to report to another Agency facility against Complainant's wishes. We therefore find that Complainant has established a prima facie case of discrimination based on reprisal. The burden now shifts to the Agency to articulate a legitimate, nondiscriminatory reason for reassigning Complainant. Specifically, the Manager of Customer Service explained that she made the decision to reassign Complainant to another work facility after Complainant stated, "I am not sure what will happen to me when I leave work and I don't feel safe." The Manger of Customer Service affirmed that she is responsible for ensuring that all employees are safe at work in accordance with Agency policy. This explanation is sufficient to meet the Agency's burden. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves, 530 U.S. at 143; Hicks, 509 U.S. at 519. We find that Complainant has clearly done so in the present case, and that the Agency erred in finding otherwise. We note that the Supreme Court has held that the fact-finder may find pretext where s/he determines that the Agency's articulated reason is unworthy of belief. Reeves, 530 U.S. at 133. In this case, we find that Complainant has established that the Agency's nondiscriminatory reason(s) are unworthy of belief. Specifically, although the Manager of Customer Service stated that Complainant was being reassigned due to concern for his safety, there is no dispute that Complainant did not wish to be reassigned away from the Kingsbridge Station. In addition, we note that the Agency reassigned Complainant rather than the alleged harasser. We find that reassigning Complainant instead of the alleged harasser essentially punishes Complainant for reporting the harassment. See, e.g., Susan G. v. Dep't of Veteran's Affairs, EEOC Appeal No. 0120162437 (May 25, 2018) (complainant who received a less desirable reassignment after reporting harassment established that the agency's legitimate, nondiscriminatory, reasons were pretext for discrimination); Donatta v. U.S. Postal Serv., EEOC Appeal No. 01A54941 (May 5, 2006) (upholding AJ's decision finding that the complainant was subjected to reprisal when she was reassigned from the facility where she worked while the harasser remained at the facility). Lastly, we find it dubious that the Manager of Customer Service would choose to reassign Complainant even though she expressed her belief that there was no merit to Complainant's claims. ROI, at 78. We find that Complainant has established that the Agency's legitimate, nondiscriminatory, reason was unworthy of credence, and therefore was pretext for discrimination. As such, Complainant has proved by a preponderance of the evidence that he was subjected to reprisal discrimination. Hostile Work Environment We find that Complainant did not establish that he was subjected to a hostile work environment. We note that the record reflects that all the accused coworkers denied making the comments, as Complainant alleged. There are no witnesses to corroborate Complainant's version of events with respect to this hostile work environment claim, and Complainant did not request a hearing. We can only evaluate the facts based on the weight of the evidence presented to us.2 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE in part, AFFIRM in part and remand to the Agency for an investigation on the claim of compensatory damages. ORDER Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ORDERED to take the following actions: 1. The Agency shall immediately offer Complainant his former Sales Service and Distribution Clerk position at the Agency's Kingsbridge Station in Bronx, New York. 2. The Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 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 the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R § 1614.110. 3. The Agency shall provide eight hours of in-person EEO training to the Manager of Customer Service with an emphasis on the Agency's obligation to prevent reprisal in the workplace; 4. The Agency shall consider taking disciplinary action against the Manager of Customer Service. If the Agency decides not to take disciplinary action, it shall set forth the reason for its decision not to impose discipline. If the identified employees are no longer employed by the Agency, the Agency shall furnish proof of the date of separation. The Commission does not consider training to be disciplinary action. 5. The Agency shall post a notice in accordance with the paragraph entitled "Posting Order." The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). POSTING ORDER (G0617) The Agency is ordered to post at its Kingsbridge Station in Bronx, New York facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 (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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 September 25, 2018 Date 1 This case has been randomly assigned a pseudonym to replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Given our conclusion that Complainant established that he was subjected to discrimination based on reprisal, we need not address Complainant's allegation of discrimination based on disability, as under the circumstances of this case, a finding on the basis of disability would not entitle him to any greater relief. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170386 9 0120170386