Gaither L. Brown, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 20, 2000
01a00504 (E.E.O.C. Apr. 20, 2000)

01a00504

04-20-2000

Gaither L. Brown, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Gaither L. Brown, Jr., )

Complainant, )

) Appeal No. 01A00504

v. ) Agency No. 4F-907-0082-99

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision

concerning his complaint of unlawful employment discrimination, in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq.; the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented is whether the agency correctly determined that

complainant failed to demonstrate by preponderant evidence that he was

subjected to harassment based on his race, age, sex, physical disability,

and prior EEO activity.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Letter Carrier, at the agency's Torrance Post Office facility in

Torrance, California. Complainant alleged that on December 3, 1998,

during a disagreement, his Supervisor became very frustrated with

complainant and used a crude expression to demonstrate her frustration.

Complainant felt that the expression was offensive. Believing he was

a victim of discrimination on the bases of race (African American),

sex (Male), reprisal (prior EEO activity),<2> age (52), and physical

disability (Flat Feet), complainant sought EEO counseling on January

11, 1999. Subsequently, complainant filed a complaint on March 4, 1999.

At the conclusion of the investigation, complainant requested that the

agency issue a final agency decision.

The FAD concluded that complainant failed to establish that the agency

discriminated against him.

Complainant appeals this decision. The agency requests that we affirm

its FAD.

ANALYSIS AND FINDINGS

It is well-settled that harassment based on an individual's race, sex,

age, physical disability, and prior EEO activity is actionable. See

Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to

establish a claim of harassment under those bases, the complainant

must show that: (1) he belongs to the statutorily protected classes and

engaged in prior EEO activity; (2) he was subjected to unwelcome conduct

related to his membership in those classes and his prior EEO activity;

(3) the harassment complained of was based on race, sex, age, physical

disability, and his prior EEO activity; (4) the harassment had the purpose

or effect of unreasonably interfering with his work performance and/or

creating an intimidating, hostile, or offensive work environment; and

(5) there is a basis for imputing liability to the employer. See Henson

v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct

should be evaluated from the objective viewpoint of a reasonable person

in the victim's circumstances. Enforcement Guidance on Harris v. Forklift

Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

Upon review of the record, we find that parties do not deny the incident

nor what was said during the incident. However, the Commission finds

that complainant has failed to demonstrate that this single incident would

rise to the level of creating an intimidating, hostile, or offensive work

environment. Therefore, the Commission finds that complainant has failed

to demonstrate by preponderant evidence that he was subject to sexual

harassment or harassment based on his race, age, physical disability,

prior EEO activity.

CONCLUSION

Accordingly, after a careful review of the record, 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:

April 20, 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 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 record indicates that complainant filed a prior EEO complaint,

Case No. 4F-907-0021-99.