01a60416
06-26-2006
Barry W. Strickland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barry W. Strickland v. United States Postal Service
01A60416
06-26-06
.
Barry W. Strickland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60416
Agency No. 4B-140-0017-05
DECISION
On October, 15, 2005, Barry W. Strickland (complainant) filed an
appeal from the September 15, 2005, final decision of the United States
Postal Service (agency) concerning a complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is AFFIRMED.
Complainant filed his formal complaint on March 14, 2005, claiming
that the agency discriminated against him based on sex, disability
(joint pain and anxiety), and in reprisal for prior EEO activity when
he was harassed since 2000, and issued a suspension in November 2004.
The agency conducted an investigation, complainant did not respond to his
notice of right to a hearing, and the agency issued its final decision
(FAD), addressing each accepted issue.<1> <2>
Complainant was a full-time regular carrier (rural) at the Watkins
Glen, New York, post office. He complained that the Postmaster (PM):
(a) since 2000, harassed him by holding him to a higher standard and
not allowing him to curtail mail; (b) in November 2004, issued him a
14-day suspension; (c) in December 2004, and January 2005, wrote him
hostile notes; and (d) in January 2005, did not provide him emergency
coverage for his route. In its FAD, the agency responded to each issue,
and found that it did not harass or discriminate against complainant.
Specifically, the agency found that complainant did not establish a
prima facie case on any basis or harassment and that, assuming he did
so, the agency articulated legitimate, nondiscriminatory reasons for
its actions to which complainant did not demonstrate pretext, nor was
his claim of harassment based on actual events or rise to the level of
discrimination.<3>
As a threshold matter, complainant must show that s/he is an individual
with a disability within the meaning of the Rehabilitation Act.
An individual with a disability is one who has, has a record of having,
or is regarded as having an impairment that substantially limits one
or more major life activities. 29 C.F.R. � 1630.2(g). Major life
activities include caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). For purposes of further analysis, we assume,
arguendo, without finding, that complainant established that he is
an individual with a disability and is entitled to coverage under the
Rehabilitation Act.
In general, disparate treatment claims are examined under a tripartite
analysis whereby a complainant must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). If the agency is successful, the burden
reverts back to the complainant to demonstrate by a preponderance of the
evidence that the agency's reasons were a pretext for discrimination.
At all times, complainant retains the burden of persuasion, and it is
his/her obligation to show by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
It is well-settled that harassment based on an individual's protected
status is unlawful, if it is sufficiently patterned or pervasive; usually,
however, a single incident or group of isolated incidents will not be
regarded as discriminatory harassment.<4> Frye v. Department of Labor,
EEOC Request No. 05950152 (February 8, 1996); Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); see also
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In this matter,
complainant claimed harassment raising two matters, that since 2000,
the PM harassed him by holding him to a higher standard and not allowing
him to curtail mail.
The agency explained that (a) the PM denied harassing complainant and
did not single him out, hold him to a higher standard, or not allow him
to curtail mail when in appropriate circumstances; (b) the PM issued
the suspension for continued mishandling of mail, properly applying
progressive discipline; (c) only one note was found in the record, stating
"update edit book, now," which was not harassing, since the PM left
similar notes for everyone when asking them to do something; and (d) while
it is the policy for carriers to arrange for substitutes, the PM assisted
complainant in doing so, and he was able to leave early for an emergency.
We find that the agency articulated legitimate, nondiscriminatory
reasons for its actions.<5> Further, even if the incidents cited by
complainant in (a) are taken as true, there is no evidence that they
were severe enough to rise to the level of discriminatory harassment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)
(harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of the complainant's employment).
The burden of persuasion now returns to the complainant to demonstrate
by preponderant evidence that the reasons given by the agency for
its actions were pretextual, or a sham or disguise for discrimination.
The complainant must show that the agency's actions were more likely than
not motivated by discrimination, that is, that the actions were influenced
by legally impermissible criteria, i.e., sex, disability, or reprisal.
Other than his assertion of his claims, complainant has not provided
probative evidence demonstrating pretext by the agency. We find that
complainant has failed to refute the agency's reasons for its actions,
that is, to demonstrate that the agency's reasons were not true and
based on illegal considerations of sex, disability, and reprisal.<6>
For the above reasons, we find that the agency did not discriminate
against complainant based on sex, disability, or reprisal.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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
___06-26-06_______________
Date
1Complainant did not respond to a request for an affidavit, nor did he
file comments on appeal; however, complainant offered a statement with
addenda with his formal complaint.
2On March 23, 2005, the agency dismissed three issues for untimely
contact with an EEO counselor. We affirm the agency's dismissal action.
3In support of his claim of discrimination based on disability,
complainant submitted a letter dated November 22, 2004, from a physician
who noted that complainant first contacted him on November 19, 2004,
complaining of joint pain and stress at work due to mental confusion.
The doctor posited that complainant's mental confusion was due to a
medication previously prescribed and that since complainant stopped
taking the medicine approximately three weeks previous and stated he
felt better, complainant's mental state will be clearer.
4See, generally, Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (Rev. October 17,
2002).
5The agency is reminded that examination of a prima facie case in reprisal
claims must consider when the prior EEO activity resolved rather than
when it began.
6Complainant did not file a statement on appeal.