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of Warning (LOW) which was later rescinded in the grievance procedure.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