Christopher O'Donnell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 12, 2009
0120090732 (E.E.O.C. May. 12, 2009)

0120090732

05-12-2009

Christopher O'Donnell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Christopher O'Donnell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090732

Agency No. 4K-290-0057-08

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's November 17, 2008 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. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. Complainant alleged that the agency discriminated against

him on the bases of religion (Catholic), age (57), and reprisal for

prior protected EEO activity when from February 13 through 27, 2008,

he was harassed, resulting in him turning in his identification with a

note indicating he was leaving the job.

Following an investigation, complainant was notified of the right to

request a hearing and made no request. Thereafter, the agency issued

a final decision finding no discrimination.

Complainant was hired as a transitional city carrier effective February

2, 2008, and was stationed at the Simpsonville Mail Post Office in

South Carolina. He attended orientation and a carrier academy from

February 4, 2008 through February 14, 2008. He contended that the

harassment commenced February 13, 2008, when he received a call from

the Postmaster saying that he would not be a postal employee very long

if he continued not reporting to work. The postmaster countered that

he called complainant and inquired what day he would report to the

Simpsonville post office. Complainant contended that when he reported

to work on February 15, 2008, the Postmaster asked if he really wanted

to go through with this; and when he gave the Postmaster his time card

from school, the Postmaster threw it across his desk saying he should

have submitted it the prior week. The Postmaster countered that he

never asked complainant if he wanted to go through with his job, never

threw the time card, and that he simply told complainant that because

the timecard was submitted after the end of the pay period, a payroll

adjustment would unfortunately have to be made to pay him for time

after the pay period ended. Complainant contended that on February

19, 2008, the Postmaster told him to deliver a rural route he had not

trained on, he was not given a scanner, and when he returned to the

station the Postmaster told him to "get the hell off postal grounds."

The Postmaster, who was not specifically asked about the route training,

countered that complainant forgot the scanner, and was never told to

get off postal premises. According to the Postmaster, when complainant

returned to the station he asked about his performance of spending nearly

five hours delivering one hour of mail, and complainant responded he did

not care, albeit the next day he said he cared. The Postmaster added

that when complainant told him he was off the clock in response to his

question about it, he told complainant to go home and return the next day.

In response to other inquiries the Postmaster stated complainant received

the same standard training as every employee, and more on the job training

than the average employee.

Complainant contended that on or about February 23, 2008, he was asked by

supervisor K.A. why his cellular phone was off, and complainant responded

he kept it off in church. According to complainant, K.A. asked why

he went to church, asked him about his religion, and told him he must

call in every morning to get his hours. K.A. countered that he never

discussed religion with complainant, and that he asked complainant if

he had a cellular phone in case they needed to get in touch, to which

complainant said no but he was working on getting one. K.A. did not

recall any incident concerning complainant being late to work due to

church attendance.

Complainant contended that another supervisor told him he was too

slow, but this supervisor indicated he was not involved in reprimanding

complainant for being slow. Complainant stated that the agency refused

to give him his paycheck, but the Postmaster stated complainant received

his paychecks the same day of payroll as everyone else, except the

two he received after his resignation, which were hand delivered to

his residence.

On or about February 27, 2008, complainant returned his identification

card and submitted a note indicating he was leaving the job, which taken

together constituted a resignation. On appeal, complainant generally

argues that agency management made false and misleading statements in

the case.

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

must be determined by looking at all the circumstances, including the

frequency of the discriminatory conduct, its severity, whether it is

physically threatening or humiliating, or a mere offensive utterance, and

whether it unreasonably interferes with an employee's work performance.

Harris v. Forklift Systems, 510 U.S. 17 (1993).

While this decision does not discuss every incident complainant alleged,

we find that he has not proven harassment because he failed to show

that a number the incidents raised to support his claim occurred,

as alleged. For the same reason, we find complainant failed to prove

he was constructively discharged.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

May 12, 2009

__________________

Date

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0120090732

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090732