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.