John F. Powers, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01a00275 (E.E.O.C. Mar. 29, 2000)

01a00275

03-29-2000

John F. Powers, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.


John F. Powers, )

Complainant, )

) Appeal No. 01A00275

v. ) Agency No. 4H-300-0231-97

) Hearing No. 110-98-8370X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W Areas), )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) 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.<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). Complainant alleges he was harassed and

discriminated against on the basis of reprisal when: (1) he was

instructed to leave the postal premises on August 9, 1997, and (2)

the agency subsequently called the police. For the following reasons,

the Commission AFFIRMS the agency's final decision.

The record reveals that complainant, who was a Carrier at the agency's

Dunwoody Station, Atlanta, Georgia, facility, filed a formal EEO

complaint with the agency on November 6, 1997, alleging that the agency

discriminated against him as referenced above. At the conclusion of

the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

Following a hearing, the AJ issued a decision finding no discrimination.

The AJ found the following relevant facts: during July, August and

September of 1996, complainant was issued a series of disciplinary

actions. On December 26, 1996, complainant was issued a Notice of

Removal for falsification of a document. Complainant subsequently filed

a grievance and an EEO complaint over the removal. On July 15, 1997,

complainant and the agency reached a settlement concerning his removal.

The settlement provided that complainant would be reinstated to the post

office, but would work at a different facility.

Thereafter, on August 9, 1997, complainant entered the Dunwoody Station

and approached his old case. The Station Manager, who had issued the

aforementioned discipline, asked complainant to leave. Complainant did

not respond, and continued towards his case. The Station Manager repeated

the instruction, but complainant only turned to examine some posted bids.

Complainant then left for his car. The Station Manager then located

complainant on the loading dock, moving back and forth on the loading

dock. Complainant was then noticed in an adjacent parking lot.

The Station Manager then called the police, who soon arrived and

spoke with the Station Manager. Complainant, who was still in the

adjacent parking lot, was questioned by police and released. One of the

police officers remained at the facility until it closed for the day.

Complainant then initiated the instant complaint.

The AJ concluded that complainant failed to establish a prima facie case

of reprisal discrimination, because he failed to show how he suffered

an adverse action. Specifically, the AJ found that although the call

to police may have upset him, he failed to show how it affected a term,

condition or privilege of employment.

Assuming, arguendo, that complainant raised an inference of

discrimination, the AJ further concluded that the agency articulated

legitimate, nondiscriminatory reasons for its actions. The AJ

found that the Station Manager, who denied any retaliatory animus,

instructed complainant to leave and later called the police because she

feared complainant. The AJ found the Station Manager's testimony was

sufficiently clear to provide complainant an opportunity to establish

pretext.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

retaliation. In reaching this conclusion, the AJ found that complainant

failed to raise an inference of discrimination based on reprisal.

For example, complainant argued that the Station Manager issued him and

others unreasonably harsh discipline. However, the AJ found that the

comparatives, who allegedly received harsh discipline, had not engaged

in prior EEO activity. The AJ therefore found that factors other than

EEO activity must have contributed to the discipline. The AJ also found

complainant's testimony was not credible when he denied receiving prior

discipline, when the in fact, he had been issued prior discipline. The AJ

also found that any retaliatory animus that may have existed during the

summer of 1996, had likely faded away when the Station Manager agreed

to reduce to discipline to lesser charges.

On August 31, 1999, the agency issued a final decision adopting the AJ's

decision.

On appeal, complainant restates arguments previously made at the hearing.

He also argues that the agency disregarded his discovery requests.

In response, the agency restates the position it took in its FAD, and

requests that we affirm its final decision.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as �such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.�

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity. To the extent that

complainant alleged the agency's actions constituted harassment, we find

the actions alleged do not rise to the level of actionable harassment.

Specifically, the incidents alleged were not sufficiently severe or

pervasive to the point where they altered the complainant's employment and

created an abusive working environment. See Harris v. Forklift Systems,

Inc., 510 U.S. 17, 21 (1993).

We discern no basis to disturb the AJ's decision. 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 agency's final decision.

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).

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:

March 29, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

1 On 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.