Curtis Clark, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.

Equal Employment Opportunity CommissionApr 26, 2000
01976183 (E.E.O.C. Apr. 26, 2000)

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.