01976183
04-26-2000
Curtis Clark, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.
Curtis Clark v. United States Postal Service
01976183
April 26, 2000
Curtis Clark, )
Complainant, )
) Appeal No. 01976183
v. ) Agency No. 1C441003397
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Curtis Clark (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (Black), color (dark complexion),
sex (male), and physical disability (chemical dependency), 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, et seq.<1> Complainant alleges he was discriminated against when:
(1) he was harassed on September 24, 1996 when a supervisor physically
threw his shoulder into complainant as complainant passed; and (2) he
received a 14 day suspension on October 4, 1996 for failure to follow
instructions, unauthorized absence from assignment, and sleeping on
duty. The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a PS-5<2> Distribution Clerk, at the agency's Cleveland, Ohio General
Mail facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a complaint on December 30,
1996, alleging discrimination as described above. At the conclusion of
the investigation, the agency sent complainant a copy of the investigative
file and hearing rights. Having received no response from complainant
within the required time period, the agency issued a final decision.
The FAD concluded that complainant failed to establish a prima facie
case of discrimination based on race/color or sex because he presented no
evidence that similarly situated individuals not in his protected classes
were treated differently under similar circumstances. The FAD also noted
that complainant's supervisor issued similar discipline to a similarly
situated female employee found sleeping on the job. The FAD went on
to conclude that complainant also did not establish a prima facie case
of disability discrimination. The FAD reasoned that because complainant
did not allege any restrictions caused by his chemical dependency, his
impairment did not rise to the level of substantially limiting a major
life activity. The FAD also noted that the record does not establish
that the agency was aware of complainant's alleged disability and that
complainant failed to establish that he received less favorable treatment
than employees outside of his protected class.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981), the Commission agrees with
the agency that complainant failed to establish a prima facie case of
race/color, sex, or disability discrimination.
Initially, complainant failed to establish a prima face case of
disability discrimination. When alleging disability discrimination,
a complainant must first establish that he is an individual with a
disability within the meaning of Commission regulations. An individual
with a disability is defined as one who: 1) has a physical or mental
impairment that substantially limits one or more of that person's
major life activities; 2) has a history of such impairment; or 3) is
regarded as having such an impairment. See 29 C.F.R. � 1630.2(g).<3>
Moreover, an individual currently engaging in the illegal use of drugs
is not an individual with a disability within the meaning of Commission
regulations when the agency acts on the basis of such use. See 29
C.F.R. � 1630.3(a). Although individuals who are no longer illegally
using drugs and have either been rehabilitated successfully or are in
the process of completing a rehabilitation program are not excluded from
coverage under the Rehabilitation Act, the record in the case at hand
does not contain evidence sufficient to establish whether complainant
fits this exception to the rule. See Appendix to 29 C.F.R. Part 1630 -
Interpretive Guidance on Title I of the Americans with Disabilities Act
(Appendix), � 1630.3. The only document in the record relating to
complainant's chemical dependency is a letter from the Cleveland Clinic
noting that complainant was enrolled in the clinic's Alcohol and Drug
Recovery Primary Outpatient Program as of September 16, 1996. This does
not establish that complainant was no longer illegally using drugs or
that he was still enrolled in the program when he was disciplined on
October 4, 1996.
Even assuming, for purposes of our further analysis herein, that
complainant established Rehabilitation Act coverage, in regard to
complainant's claims of race/color, sex, and disability discrimination,
complainant named no similarly situated individuals outside his
protected classes who were treated more favorably than he in similar
circumstances. The one comparative employee complainant named (CW1:
Black, light complexion, male), is not only the same race and sex as he,
but also committed a different infraction than complainant and, unlike
complainant, had no prior discipline. Complainant does not provide any
other evidence that his suspension was motivated by his race/color, sex,
or disability. Accordingly, complainant failed to establish a prima
facie case of discrimination in regard to Issue No. 2 and the agency's
finding of no discrimination is AFFIRMED.
Complainant also alleged harassment at the hands of one of his supervisors
when, on or about September 24, 1996, the supervisor physically threw his
shoulder into complainant as complainant passed. A review of the record
indicates that complainant alleged that this supervisor began to create a
hostile environment in March 1996 when he refused to recognize complainant
in front of his peers while making the 25 year pins presentation.
The agency did not address this allegation as one of harassment, but
instead noted that the supervisor denied pushing complainant and concluded
that complainant failed to meet his burden of establishing discrimination.
Complainant may assert a Title VII cause of action for harassment if
the discriminatory conduct was so severe or pervasive that it created
a hostile work environment on the basis of his race, color, gender,
religion, national origin or retaliation. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 3, 6 (March 8,
1994); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). In the case at hand, complainant offered nothing to
establish that his alleged treatment was motivated by his membership in
a protected class. Moreover, the two incidents described by complainant
do not amount to harassment.
In evaluating the degree to which a work environment is sufficiently
severe or pervasive to constitute harassment, the Commission has
noted that such a claim "generally requires a showing of a pattern
of offensive conduct." See EEOC Policy Guidance on Current Issues
of Sexual Harassment, N-915-050, No. 137 at 103 (March 19, 1990). The
Commission has repeatedly found that unless the conduct is very severe,
a group of isolated incidents will not be regarded as rising to the
level of harassment. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Department of
Health and Human Services, EEOC Request No. 05940481 (February 16,
1995); James v. Department of Health and Human Services, EEOC Request
No. 05940327 (September 20, 1994); see also Harris v. Forklift Systems,
Inc., 510 U.S. 17, 22 (1993). Here, even assuming that complainant
did not receive his pin with the other employees and that a supervisor
pushed him when passing in the hallway, complainant has not established
that he was subjected to a pattern of offensive conduct based on any of
his protected classes.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
4/26/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2 The investigative report indicates at one point that complainant was
a PS-6.
3 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.