01980686
01-21-2000
Elvin E. Jensen Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Elvin E. Jensen Jr. v. United States Postal Service
01980686
January 21, 2000
.
Elvin E. Jensen Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes/Midwest Region),
Agency.
Appeal No. 01980686
Agency No. 1I552100495
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of age (DOB: 5/21/40)), in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the Commission AFFIRMS
the FAD as CLARIFIED.
The record reveals that during the relevant time, complainant was employed
as a Building Maintenance Custodian at the agency's Minneapolis - St. Paul
Bulk Mail Center facility. Complainant claims that he was discriminated
against on the basis of age when he was issued a 14-day suspension for
"Failure to Follow Instructions and Unauthorized Absence from Work
Assignment." Complainant argues that this discipline was excessive and
unnecessarily punitive because he left the premises merely forgetting
that he was on-call as a trouble shooter during his lunch break,
and that it resulted in only a minimal (one hour) estimated loss in
productivity. Complainant additionally claims that he was subjected
to harassment due to a hostile environment, as evidenced by lack of
interesting work assignment and undue criticism of his work from his
supervisor (S), and also because he was subjected to name calling, foul
language, and rude treatment from co-workers which management officials
refused to address. He contends that the 14-day suspension was part of
this pattern of harassment.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint. At the conclusion
of the investigation, complainant failed to request either a FAD or
a hearing before an EEOC Administrative Judge. Therefore, the agency
properly issued a FAD.
Regarding the 14-day suspension, the FAD concluded that complainant
failed to establish a prima facie case of age discrimination because
he presented no evidence that similarly situated individuals not in his
protected class were treated differently under similar circumstances, or
any other evidence sufficient to establish an inference of discrimination
on the basis of age.<2> The FAD also concluded that complainant failed
to establish a prima facie case of harassment because he presented
insufficient corroborating evidence to establish that the claimed
harassing conduct in fact occurred on the part of either S or his
co-workers. The FAD further noted that even if complainant had established
a prima facie case of harassment, he failed to demonstrate that "but for"
his age he would not have been subjected to the harassment. The FAD also
found that complainant failed to demonstrate that management officials
were aware of the harassment, or that complainant informed them of the
harassment. The FAD then concluded that complainant failed to show that
the agency's articulated reasons for its actions were a pretext for
discrimination.
Complainant submits no further statement on appeal. The agency requests
that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979), and Jackson v. U.S. Postal Service, Appeal No. 01972555 (April
15, 1999), the Commission agrees with the agency that complainant failed
to establish a prima facie case of age discrimination or harassment.
Regarding the 14-day suspension, we find that the record confirms
that complainant failed to follow instructions and was away from his
assigned work area without authorization when he left the premises for
a lunch break, but was scheduled to be on-call as a trouble shooter
during this time. S discovered his absence when a call went unanswered
and another worker had to be assigned to handle the problem. The record
additionally confirms that this was complainant's second offense for the
same infraction, and that the 14 day suspension constituted progressive
discipline. Complainant fails to present any evidence to show that
this action was taken as a result of animus against him due to age,
arguing only that because he is older he forgets things more often,
apparently suggesting his infractions of the rules should be excused
for this reason. We are unpersuaded by this argument, and concur with
the FAD's finding on this issue. Moreover, we also find that the 14-day
suspension was not designed to harass complainant, but was issued for
the reason stated by S, and consequently is not part of the "pattern of
harassment" claimed by complainant.
With respect to complainant's claim that S harassed him and subjected
him to a hostile working environment by assigning him only boring
repetitive work, and subjected him to unwarranted criticism, we note that
S testified that he makes assignments based on the capabilities of the
workers to perform the work, and attempts to rotate assignments as much
as possible. We find that the record is devoid of any indication that
complainant was assigned to duties outside of his position description,
or that he asked S to give him more challenging assignments. Moreover, S
testified that complainant is a slow and inefficient worker, and that he
tries to assist him, not harass him, by showing him faster ways of doing
the work. Complainant's performance problems, especially his slowness,
are corroborated by S's Manager (M), as well as many personal statements
of co-workers in the record. Accordingly, we concur with the FAD that the
evidence is insufficient to establish that the claimed harassing conduct
by S actually occurred, and find that complainant has failed to establish
a prima facie case of harassment based on age with respect to this issue.
Next, with respect to complainant's claim regarding the harassing conduct
of co-workers, and management's failure to stop the conduct, we note
that the record contains many witness statements that complainant was
subjected to frequent and unprovoked name calling, foul language and
ridicule (to the effect that complainant was old, fat, slow, and stupid)
by numerous coworkers, and that this treatment was well known by all,
including S. On the other hand, there are also many witness statements
of record which aver that complainant was consistently the protagonist
in these situations, and that he was the one who engaged in abusive
conduct. S testified that he received numerous complaints from co-workers
about complainant's obnoxious behavior, requiring him to defuse many
conflicts instigated by complainant, but that complainant himself never
complained about co-workers treating him in this manner. S testified
that his only knowledge of the claimed harassment was in the context of
various union negotiations on the behalf of complainant, and that the
union representatives did not name either specific incidents or guilty
co-workers, so that he could not investigate these incidents. S indicated
that he assumed that the claimed co-worker harassment was merely contrived
for the purpose of enhancing the union's bargaining position. A statement
from complainant's representative in this case, who is also his union
representative, indicates that he personally witnessed this conduct
toward complainant. He states that he informed S and other management
officials on four occasions about it, and provided them with a detailed
description of the harassing conduct. However, he does not say that he
identified specific incidents or co-workers in this context. Moreover,
we note that none of the co-worker statements in complainant's behalf
identified specific instances or perpetrators, and none indicated that
they reported the conduct to S or any other management official.
In reviewing the above evidence, we note that certain statements and
testimony are in direct dispute. Nevertheless, we find that complainant
has failed to provide sufficient evidence to establish that the claimed
co-worker harassment actually occurred. In this respect, we note that none
of complainant's witnesses identified specific incidents or co-workers. In
contrast, however, the record shows that S received and investigated
complaints about complainant, but that complainant himself never informed
him about unprovoked co-worker harassment.<3> We find that S was aware of
this provoked conduct by virtue of the co-worker complaints, and that he
did investigate these incidents, addressing the problem and consistently
finding that complainant was the protagonist. Additionally, because
none of the co-worker statements, nor the representative's statement,
identify or fully describe specific instances of unprovoked harassment,
we find that they are not sufficiently probative to find that this
harassment occurred as claimed by complainant.
Accordingly, we concur with the agency's finding that the evidence
is insufficient to prove that complainant was subjected to co-worker
harassment as set forth in his complaint, and that he has not established
a prima facie case of harassment with respect to this issue. Moreover,
even assuming that a prima facie case of harassment had been shown, we
find that the agency has successfully set forth an affirmative defense in
this matter because the record shows that management was not adequately
informed about the claimed harassment, never being told about a specific
incident or a specific protagonist, precluding an opportunity to address
the problem. See Jackson, supra. citing to Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986).
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 the FAD as
CLARIFIED.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 21, 2000
__________________
Date
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
______________________________
1On 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.
2The FAD states that complainant has the burden of establishing that age
was a determinative factor in order to establish a prima facie case. This
is incorrect. Instead, that question is addressed when the trier of
fact makes a decision on the ultimate issue of discrimination, and not
at the prima facie stage. Although the burden remains on complainant
to demonstrate, by a preponderance of the evidence, that age was a
determinative factor (in the sense that, "but for" his age he would not
have been subjected to the action at issue), it is not an element of the
prima facie case analysis. See Fodale v. Department of Health and Human
Services, EEOC Request No. 05960344 (October 16, 1998). We CLARIFY the
FAD accordingly.
3According to his statement, complainant's representative advised him
to keep a diary of the claimed harassment, but it does not appear that
he did so.