Doug McNearney, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region) Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01976862 (E.E.O.C. Jan. 24, 2000)

01976862

01-24-2000

Doug McNearney, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region) Agency.


Doug McNearney v. United States Postal Service

01976862

January 24, 2000

Doug McNearney, )

Complainant, )

) Appeal No. 01976862

) 01980888

v. ) Agency No. 4F950119494

) 4F950000297

) Hearing No. 370-97-X2109

William J. Henderson, ) 370-97-X2627

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region) )

Agency. )

)

DECISION

Complainant timely initiated appeals from final agency decisions

(FAD) concerning his equal employment opportunity (EEO) complaints of

unlawful employment discrimination on the bases of race (Caucasian),

national origin (European), color (White), sex (male), reprisal (prior

EEO activity), and mental disability (stress), 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 in complaint No. 1 (01976862), that he

was discriminated against on June 20, 1994, when he was issued a Letter

of Warning (LOW) which was later rescinded in the grievance procedure. In

a separate complaint, complaint No. 2 (01980888), complainant alleges he

was subjected to reprisal as a result of prior EEO activity and subjected

to a hostile work environment when: (1) on July 23, 1996, his request for

time to prepare an EEO affidavit was denied; (2) on September 7, 1996, a

supervisor (S1) gave a stand-up to all employees, including complainant,

instructing them to hand carry baskets of mail on to trailers, rather

than using nutting trucks or u-carts; (3) on September 21, 1996, S1 gave

a stand-up to all employees, advising them that management would fight

anyone regarding LOWs; (4) on September 23, 1996, an acting supervisor

(S2) monitored the complainant's work by watching the complainant over

the video surveillance camera at work; and (5) on or before September 11,

1996, an Employee Assistance Program (EAP) counselor erroneously told

an EAP psychologist, that complainant's wife had left him and then the

counselor refused to divulge to complainant the name of the person who

told her the false information.

The appeals are accepted in accordance with EEOC Order No. 960.001.

The appeals are consolidated at the request of complainant's

representative. For the following reasons, the agency's decisions are

AFFIRMED.

The record reveals that complainant, a Distribution Clerk, PS-05, at the

agency's Tulare, California Post Office, filed formal EEO complaints

with the agency on October 11, 1994, November 13, 1996, and November

27, 1996, (the two November 1996, complaints were consolidated into

one complaint). With respect to complaint No. 1, complainant contends

that he was discriminated against when he was issued a LOW for failure

to follow management instructions, threatening a fellow employee,

and for conduct unbecoming a Postal employee. The LOW was rescinded in

July 1994, and was given to the complainant. With respect to complaint

No. 2 complainant contends that as a result of the above claims he was

subjected to a hostile work environment.

At the conclusion of the investigations, complainant requested a hearing

for both cases before an Equal Employment Opportunity Commission (EEOC)

Administrative Judge (AJ). Both AJs issued Recommended Decisions

(RD) without a hearing, finding no discrimination in each case.

In complaint No. 1, the AJ concluded that there was no discrimination

since complainant was not aggrieved. The RD noted that the LOW was

rescinded within a very short time (30 days) from the date it was issued

and that complainant was given the original LOW from the file. Further,

the RD concluded that no evidence was presented that complainant was

adversely effected in any way. The RD held that complainant failed

to show that as a result of the LOW there was any effect or continuing

effect on the terms, conditions, or privileges of his employment. The RD

also held that complainant's fear of future discipline was not enough

to render an employee aggrieved nor did his claim of stress constitute

aggrievement. As such, the RD found no discrimination. The agency's FAD

adopted the AJ's RD.

With respect to complaint No. 2, the RD held that complainant had

presented no evidence that any of the alleged incidents of discrimination

singularly or combined, constituted an aggrievement or subjected

complainant to a hostile work environment. Specifically, the RD held

that complainant failed to establish a prima facie case of discrimination

with respect to all claims because he failed to demonstrate that similarly

situated employees not in his protected classes were treated differently

under similar circumstances. The RD found with respect to claim (1)

that complainant had been given a reasonable amount of time to work on

his EEO complaint. With respect to claims (2) and (3) the RD held that

complainant was in no way treated differently than other employees since

all workers were required to attend the stand-ups and since the safety

rules and management's attitude shift in favor of LOWs applied to all

employees. As for claim (4), the RD held that complainant had described no

cognizable injury as there was no expectation of privacy since complainant

was in a public workplace which he knew was under video surveillance

and other employees were subjected to the same video surveillance.

With respect to claim (5), the RD held that complainant had failed to

show that he was subjected to any adverse employment action because of

the Counselor's action. The RD held that complainant's argument that

these incidents collectively demonstrate a pattern of harassment and a

hostile work environment in retaliation for his prior EEO activity was

not persuasive. The RD found that these incidents which occurred over

a two month span, could not reasonably be described as a "pattern" of

harassment. Moreover, the RD held that all of the events which complainant

asserts are part of a campaign of management's harassment appear to be

ordinary workplace activities, not disciplinary actions. The agency's

FAD adopted the AJ's RD.

On appeal, complainant contends that the AJ erred in complaint No. 1

when he held that complainant was not aggrieved. Complainant maintains

that since the LOW was issued as a form of reprisal, there should not

have been a finding of no discrimination.

After a careful review of the record, the Commission finds that the

AJ's RDs summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. In complaint No. 1, we agree with

the FAD and find that complainant was not aggrieved since he failed to

demonstrate any injury by the agency to a term, condition or privilege

of his employment. Instead, we find that the agency's actions

were disciplinary in nature and not motivated by reprisal. In both

complaints we note that complainant failed to present evidence that any

of the agency's actions were in retaliation for complainant's prior EEO

activity or were motivated by discriminatory animus toward complainant.

We discern no basis to disturb the AJ's findings of no discrimination

which were based on a detailed assessment of the record. Therefore, after

a careful review of the record, including complainant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we AFFIRM both FADs.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

January 24, 2000

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 of mailing. I certify that

the 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.