01993935
11-21-2001
Jesse Starcher, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Jesse Starcher v. United States Postal Service
01993935
11/21/01
.
Jesse Starcher,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01993935
Agency No. 4H-335-1208-96, 4H-335-0054-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), 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 Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleged that he was discriminated against on
the bases of religion (Baptist), national origin (American Indian), age
(10/27/44), disability (stress), and reprisal (prior EEO activity), when:
(1) he was harassed by management for the second time concerning casing
and carrying of Delivery Point Sequence (DPS) Mail; and (2) on October 9,
1997, he discovered that management retained a Notice of Suspension in
his file which should have been expunged.
The record reveals that during the relevant time, complainant was employed
as a City Letter Carrier at the agency's Town & Country Branch Station,
Tampa, Florida facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed formal
complaints on August 2, 1996, and January 5, 1998. At the conclusion of
the investigations, complainant was informed of his right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive a
final decision by the agency. Complainant initially requested a hearing,
but later withdrew that request and asked for an immediate final decision
by the agency.
In its FAD, the agency concluded that complainant failed to establish
that he is an individual with a disability because he failed to produce
any medical documentaion that would establish he has a substantial
limitation to a major life activity. Furthermore, the agency found
no evidence that complainant has a record of a disability, or that he
was regarded as having a disability. The agency further found that
complainant failed to establish a prima facie case of reprisal because
he failed to show the requisite causal connection between his prior EEO
activity and the harassment.
In his second complaint, complainant alleged that the agency failed to
comply with the terms of a pre-arbitration settlement agreement when it
failed to expunge a Notice of Suspension. In that regard, the agency
found that the agreement provided that a Notice of Suspension would be
reduced to an official discussion, but there was no evidence that the
agreement provided for the expungement of the Notice.
In its final decision, the agency found complainant failed to establish
an inference of discrimination on any bases because he failed to identify
any similarly situated individuals outside of his protected classes who
were treated more favorably than he was under similar circumstances.
Although he identified an individual whose discipline was removed from
his file, the agency found that individual's agreement provided for such.
On appeal, complainant contends that the investigation was one-sided.
The agency requests that we affirm its FAD.
Complainant's first complaint involves an allegation of harassment.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
In the present case complainant alleges that he was harassed by the
Manager when the Manager informed him that the DPS mail was disorganized,
but to deliver it anyway. According to complainant, while he was
loading his vehicle for the mail, the Manager instructed him to case
the mail instead. Complainant alleged that after casing the mail, he
requested auxiliary assistance from the Manager, which was granted.
Complainant alleged that after delivering part of his route, he returned
to the station for lunch, when the station manager ordered him back to
the street until an auxiliary carrier could assist him. Complainant
alleges that this incident constitutes harassment, and that the Manager
stalks him.
After a review of the record, we find no evidence that the acts
complained of were motivated by a discriminatory animus towards
complainant's national origin, age, religion, alleged disability or in
retaliation for prior EEO activity. Furthermore, we find that although
complainant may have been frustrated with the change in directions,
his claims fail to rise to the level of harassment protected by Title
VII. Instead, this appears to simply be a case of poor communication and
poor working relationships. In light of our finding that complainant
failed to establish a claim of harassment, we need not address whether
he is a qualified individual with a disability.
In complainant's second complaint, he alleges that the agency
discriminated against him when it failed to remove a Notice of
Suspension that the agency purportedly agreed to remove pursuant to
the grievance process. Complainant's claim regarding the failure
of the agency to comply with the terms of the grievance settlement
constitutes a collateral attack on another forum's proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). The proper forum for complainant
to have raised his dissatisfaction with the outcome of the grievance
process was within the negotiated grievance process itself. Since the
claim is a collateral attack on the outcome of another administrative
dispute resolution process, it fails to state a claim and is dismissed.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
11/21/01
Date