Lionel Neelya, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Areas), Agency.

Equal Employment Opportunity CommissionMar 21, 2000
01a00724 (E.E.O.C. Mar. 21, 2000)

01a00724

03-21-2000

Lionel Neelya, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Areas), Agency.


Lionel Neelya, )

Complainant, )

) Appeal No. 01A00724

v. ) Agency No. 4J-606-0061-97

) Hearing No. 210-99-6198X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Great Lakes/Mid West 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 on the bases of sex (male) and physical

disability (unspecified), 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> Complainant alleged

in his complaint that the agency discriminated him on the aforementioned

bases when, on December 9, 1996, he was questioned about the use of

the telephone. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following

reasons, the Commission AFFIRMS the agency's final decision.

The record reveals that complainant, a Modified Clerk at the agency's

Chicago Central Facility, Chicago, Illinois, filed a formal EEO

complaint with the agency on November 5, 1997<2>, alleging that the

agency had discriminated against him as referenced above. At the

conclusion of the investigation, complainant requested a hearing before

an EEOC Administrative Judge (AJ). Determining there were no issues

of material fact, the AJ issued a decision without a hearing, finding

no discrimination.

In her decision, the AJ noted that by Scheduling Order dated March 23,

1999, she requested the complainant to submit the following information:

(1) an explanation as to the reasons he waited until December 12, 1997

to seek EEO Counseling; (2) confirm whether he backdated the complaint

form, and if so, his reasons for doing so; and (3) specify the harm he

allegedly suffered in the present case.

The AJ also noted that complainant was sent the March 23, 1999

Scheduling Order but did not respond. She noted that the post office

sent complainant two notices of the delivery, on March 24, 1999, and

April 3, 1999. Complainant, however, failed to retrieve his copy from

his P.O. Box, and the Scheduling Order was returned to the EEOC District

Office on April 14, 1999. On that date, the AJ confirmed complainant's

address. During that conversation, complainant denied any knowledge of

the Scheduling Order. In a subsequent letter written to the AJ, however,

complainant acknowledged that he received the notice dated March 24,

1999, but did not attempt to retrieve the mail until April 11, 1999.

The AJ found complainant failed to offer any reason for his delay. As a

result of his delay in retrieving the Scheduling Order, and his failure

to timely respond to the Order, the AJ did not consider his submission

dated April 30, 1999, as a sanction.

On April 5, 1999, the agency filed a Motion for Summary Judgement, to

which complainant failed to timely respond. On May 10, 1999, the AJ

notified the parties that a recommended decision would be issued without

a hearing in the agency's favor.

In her decision, the AJ concluded that complainant failed to establish a

prima facie case of discrimination on any bases because he failed to show

that the December 9, 1999, incident resulted in any tangible harm, such

as a lower performance evaluation or disciplinary action. The AJ further

found that complainant failed to offer proof that the incident created

an objectively unreasonable hostile work environment. As such, the AJ

recommended a finding of no discrimination. On October 13, 1999, the

agency issued a final decision adopting the AJ's recommended decision.

Following his appeal to the Commission on October 26, 1999, complainant

filed a brief in support of his appeal on December 12, 1999. The agency

stands on the record and requests that the Commission affirm its final

decision.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. This regulation is patterned after the summary judgement procedure

set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary

Judgement is proper when �material facts are not in genuine dispute.�

29 C.F.R. � 1614.109(g). Only a dispute over facts that are truly

material to the outcome of the case should preclude summary judgement.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes

over facts that might affect the outcome of the suit under the governing

law, and not irrelevant or unnecessary disputes, will preclude the entry

of summary judgement). For example, when a complainant is unable to

set forth facts necessary to establish one essential element of a prima

facie case, a dispute over facts necessary to prove another element of

the case would not be material to the outcome. Celotex v. Catrett,

477 U.S. 317, 322-23 (1986). EEOC MD-110, at 7-15 November 9, 1999.

The Commission will apply a de novo standard of review when it reviews

an AJ's decision to issue a decision without a hearing pursuant to 29

C.F.R. � 1614.109(g). See, EEOC MD-110, at 9-16.

To the extent that complainant alleged that he was subjected to

harassment, the Commission notes that unless the conduct is severe,

a single incident or group of isolated incidents will not be regarded

as discriminatory harassment. See generally, Walker v. Ford Motor Co.,

684 F. 2d 1355 (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 Inc., 510 U.S. 17 (1993); Rideout v. Department of the Army, EEOC

Appeal No. 01933866 (November 22, 1995). Although complainant strenuously

argues that he has been subjected to discrimination and harassment due

to his sex and disability, we find insufficient evidence in the record

to support his position. The preponderance of the evidence does not

support complainant's contentions that the events rose to a severe or

pervasive level, or that the actions were based on any prohibited bases.

We note that complainant's submissions on appeal were untimely.

As complainant failed to offer any reason for his delay, the submissions

were therefore not considered. See 64 Fed. Reg. 37,644, 37, 659(1999)(to

be codified at 29 C.F.R. � 1614.403). After a careful review of the

record, including arguments and evidence not discussed in this decision,

the Commission affirms the agency's final decision adopting the AJ's

recommended decision.

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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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 the decision. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive the decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 21, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

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.

2The complaint itself is dated December 9, 1996.