Henry A. Morris, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (N.Y./N.E. Areas), Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01971322 (E.E.O.C. Feb. 1, 2000)

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)