01971322
02-01-2000
Henry A. Morris, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (N.Y./N.E. Areas), Agency.
Henry A. Morris v. United States Postal Service
01971322
February 1, 2000
Henry A. Morris, )
Complainant, )
) Appeal No. 01971322
v. ) Agency Nos. 1A-106-1026-96
) 1A-106-1038-96
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(N.Y./N.E. Areas), )
Agency. )
)
DECISION
Complainant timely initiated appeals of two final agency decisions (FADs)
concerning his complaints of unlawful employment discrimination on the
bases of religion (Jewish), reprisal (prior EEO activity), physical
disability (skin condition and allergies), and mental disability
(Adjustment Disorder with Anxiety), 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>
In his first complaint, filed on May 13, 1996, complainant alleged he
was discriminated against on the bases of religion and disability when,
on February 20, 1996, he was issued a letter of warning when he was
ordered to perform an unsafe act and was intimidated. In his second
complaint, filed on July 22, 1996, he alleged that he was retaliated
against for his prior EEO activity when he was ordered back to his work
area by the Manager, Distribution Operations. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decisions are AFFIRMED.<2>
The record reveals that during the relevant time, complainant was employed
as a Mail Processing Equipment Maintenance Mechanic, at the agency's
Westchester, N.Y., Processing and Distribution Plant. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently filed the formal complaints referenced above. At the
conclusion of the investigation, complainant failed to request a hearing,
and the agency subsequently issued its final decisions.
Agency Complaint No. 1A-106-1026-96
In its decision, the agency concluded that complainant failed to
establish a prima facie case of disability discrimination in that he
failed to present evidence that he suffered from an impairment which
substantially limited a major life activity. Assuming arguendo, that
complainant had established an inference of discrimination, the agency
found that it had articulated legitimate, nondiscriminatory reasons for
its actions, namely, that complainant was issued the letter of warning
when he failed to obey a direct order to sweep his assigned work area.
Although complainant contended that sweeping the floor was not in his
job description, the agency maintained that if complainant believed that
he was ordered to do something not in his job description, he should
have followed the order and then filed a written grievance. In sum,
the agency concluded that complainant failed to produce any evidence
that the action alleged was as a result of his religion or disability,
and that he was not discriminated against, as alleged.
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 finds that the
agency properly found that complainant failed to show that the agency's
reasons for its actions were a pretext for discrimination. We note that
complainant failed to produce any evidence that the agency's actions were
taken as a result of his religion or disability. Although complainant
submitted documentation that he suffers from an allergy to dust and
has been treated for an Adjustment Disorder and Anxiety, we find that
complainant failed to show that he has an impairment which substantially
limits a major life activity. In sum, we find that complainant failed
to prove, by a preponderance of the evidence, that he was discriminated
against on the bases of religion or disability when he was issued a
letter of warning.
Agency Complaint No. 1A-106-1038-96
In his second complaint, complainant alleged that the agency retaliated
against him for filing his first complaint when the Manager of
Distribution Operations ordered him back to work. Complainant testified
in his affidavit that he was harassed and retaliated against by this
comment. In its final decision, the agency dismissed this allegation
because it failed to state a claim.
EEOC Regulation 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a) provides that an
agency may dismiss a complaint which fails to state a claim pursuant to
64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.103). For employees and applicants for
employment, EEOC Regulation 29 C.F.R. �1614.103 provides that individual
and class complaints of employment discrimination prohibited by Title VII
(discrimination on the bases of race, color, religion, sex and national
origin), the ADEA (discrimination on the basis of age when the aggrieved
individual is at least 40 years of age) and the Rehabilitation Act
(discrimination on the basis of disability) shall be processed in
accordance with Part 29 C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether he has alleged employment discrimination
covered by the EEO statutes. The Commission's Federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (Apr. 21, 1994).
In the present case, complainant alleged that he was harassed when the
Manager of Distribution Operations ordered him back to his work station.
Furthermore, in his affidavit, complainant alleged that on May 15,
1996, the Manager of Distribution Operations told complainant to,
"wake up, now you can also put that on paper." It is well-settled
that, unless the conduct is very severe, a single incident or a group of
isolated incidents will not be regarded as creating a discriminatory work
environment. See James v. Department of Health and Human Services, EEOC
Request No. 05940327 (September 20, 1994); Walker v. Ford Motor Company,
684 F.2d 1355 (11th Cir. 1982). The trier of fact must consider all of
the alleged harassing incidents and remarks, and considering them together
in the light most favorable to the complainant, determine whether they
are sufficient to state a claim. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
The Commission finds that the incidents alleged in complainant's
complaint and affidavit are not sufficient, when examined in their
entirety, to state a claim of harassment or hostile work environment,
under the law and regulations cited above. The incidents in question
simply do not reflect the degree of severity required to sustain an
actionable claim of harassment or hostile work environment. Therefore,
we find that the agency's dismissal of this allegations was proper.
After a careful review of the record, including arguments and evidence
not specifically addressed in this decision, we AFFIRM the 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).
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:
February 1, 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:
_________________________ __________________________
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.
2Complainant received a final agency decision for Agency Complaint
No. 1A-106-1038-96 on November 4, 1996. He filed an appeal on November
25, 1996, but mistakenly indicated he was appealing the agency's
decision for his other complaint, Complaint No. 1A-106-1026-96.
On June 12, 1997, the agency issued a final decision for Agency
Complaint No. 1A-106-1026-96, which was received by complainant on
June 16, 1997. Complainant filed his second appeal on June 23, 1997.
Although complainant mistakenly indicated the wrong agency complaint
number on his first appeal form, we find that he filed his appeals within
30 days of his receipt of each decision. As such, we deem both appeals
timely filed. Furthermore, the complaints are hereby consolidated
pursuant to 64 Fed. Reg. 37, 644, 37, 661) (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.606)