01a40159
06-30-2005
Michael Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Michael Mitchell v. United States Postal Service
01A40159
06-30-05
.
Michael Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01A40159
Agency No. 4H-327-0167-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a City Carrier at the agency's Post Office in Casselberry,
Florida. Complainant sought EEO counseling and subsequently filed a
formal complaint on August 23, 2001, alleging that he was subjected to
a hostile work environment on the bases of disability (physical), age
(D.O.B. July 11, 1957), and in reprisal for prior EEO activity when:
(1) On April 9, 2001, his supervisor (S1) harassed him when S1 called
him and asked him to curtail all bulk mail, instructed him to finish
his route in eight hours, and S1 failed to take any action on his pay
correction request that was pending since September 25, and October
12, 2000;
On April 11, 2001, S1 gave him an official discussion during which
complainant was instructed that if he failed to finish his route in
eight hours, he would be guilty of failure to follow instructions,
S1 threatened to fire complainant, told complainant he should find
another job, attempted to intimidate complainant when S1 stated he was
in close touch with the EEO Investigator, and stated he was ready for
complainant when he received his next EEO complaint;
on April 23, 2001, S1 refused to let him see a shop steward and S1 rode
with complainant on his route because �he did not like his call,� S1
forced complainant to work overtime, S1 refused to give complainant
a copy of Form 3996, and S1 refused to provide written receipt of
complainants request for a special route count;
on April 23, and May 2, 2001, S1 had him curtail markups, hold mail
and all bulk mail;
on April 24, 2001, S1 asked him if he had a physical condition which
prevented him from doing his route properly, which subsequently
complainant learned the questions were an investigative interview;
on April 24, and May 9, 2001, S1 did not respond to his request for
advice on how to improve his performance;
on April 25, 2001, S1 harassed him because S1 did not like his call,
gave him a hard time about it, accused him of poor performance, and
said S1 was going to count him on Friday;
on April 27, 2001, S1 did not respond to his request for copies of the
Forms 1838-C, 1551, and commented that one of the younger guys would
take part of the route one hour and fifteen minutes so he would not
have to worry about moving around so much;
on May 2, 2001, S1 specifically looked for something to question his
performance when he told him to start casing flats when he ran out
letters while he was casing flats;
on May 2, and May 9, 2001, S1 singled him out when S1 looked through
his flat case, had somebody bring his parcel hamper to him, and had
the accountable clerk make a special trip to his case;
on May 9, and 11, 2001, S1 refused his request for auxiliary assistance
and Form 3996;
on May 11, 2001, S1 followed him on his route, S1 asked him to take
his break in the office to show he returned to the office ten minutes
sooner than he would have; S1 told him it was his responsibility to
cut circulars while on the street if he needed to get back in time, S1
used his cell phone while driving whereas he and others were instructed
not to do so, S1 had another supervisor give complainant a Letter of
Warning; and
on June 5, 2001, S1 harassed him about his calls even though he was not
running the floor and kept asking why he wanted to see a shop steward.
At the conclusion of the investigation, 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
requested that the agency issue a final decision. In its FAD, the
agency concluded that complainant failed to establish that he was
harassed and failed to establish that he had been discriminated against.
Complainant appealed this FAD to the Commission and, on appeal, requests
summary judgment in his favor as well as any punitive damages. We note,
however, that the Commission does not issue summary judgment decisions on
appeal and punitive damages are not available. See 29 C.F.R. � 1614.501.
As a preliminary matter, we note that on appeal, we review the
FAD issued without a hearing de novo. 29 C.F.R. � 1614.405(a).
In order to establish a hostile work environment claim based on
disability, complainant must prove: (1) he is a qualified individual
with a disability; (2) he was subjected to unwelcome harassment;
(3) the harassment was based on his disability; (4) the harassment was
sufficiently severe or pervasive to alter a term, condition, or privilege
of employment; and (5) some factual basis exists to impute liability for
the harassment to the employer. Whitt v. United States Postal Serv.,
EEOC Appeal No. 01A15035 (April 3, 2003), citing Fox v. General Motors,
247 F.3d 169 (4th Cir. 2001). Complainant must establish that he is
a �qualified individual with a disability� within the meaning of the
Rehabilitation Act. An �individual with disability� is a person who has,
has a record of, or is regarded as an individual with a physical or mental
impairment that substantially limits one or more of that person's major
life activities, i.e., caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
See, 29 C.F.R. � 1630.2(j). An impairment is substantially limiting when
it prevents an individual from performing a major life activity or when
it significantly restricts the condition, manner, or duration under which
an individual can perform a major life activity. 29 C.F.R. � 1630.2(j).
Assuming arguendo that complainant is an individual with a disability, we
find that complainant failed to establish that the complained-of incidents
were sufficiently severe to alter the terms, conditions or privileges of
employment. Specifically, we find that most of the incidents were normal
workplace interactions between management and employees which, without
more, are not sufficiently severe to render the work environment hostile.
S1 proffered in his affidavit that many of these incidents arose from
when he addressed complainant's performance issues. Also, S1 disputes
in his affidavit the way complainant characterized these incidents.
Complainant has not offered any other evidence to corroborate that
theses incidents occurred as he alleged. Further, the record does not
contain any evidence to demonstrate that any of management's actions
were motivated by animus towards complainant's disability.
Similarly, in order to demonstrate that complainant was subject to
harassment in reprisal for his prior EEO activity<1> or based on his age,
he must show, inter alia, conduct that is: (1) sufficiently severe or
pervasive to alter the conditions of his employment; and (2) that it was
based on his membership in a protected class. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 23 (1993). We find that complainant has failed
to present any evidence that the alleged harassment was sufficiently
severe to render his work environment hostile or were the result of the
agency's animus toward his protected bases. As mentioned above, most of
the incidents were normal workplace interactions between management and
employees which, without more, are not sufficiently severe to render
the work environment hostile. Since S1 has disputed complainant's
characterization of the incidents and complainant has not offered any
other evidence to substantiate his claims that theses incidents occurred
as he alleged, we find that complainant failed to establish that he has
subject to harassment in reprisal for prior EEO activity or based on
his age.
After a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in this
decision, we affirm the FAD's finding of no discrimination.
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
_____06-30-05_____________
Date
1 It is unclear from the record from which
statute complainant is alleging his prior EEO activity arose.