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.