Michael P. Garthwaite, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01a03432 (E.E.O.C. Nov. 17, 2000)

01a03432

11-17-2000

Michael P. Garthwaite, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Michael P. Garthwaite v. United States Postal Service

01A03432

November 17, 2000

.

Michael P. Garthwaite,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03432

Agency No. 4C-442-0061-97

Hearing No. 220-99-5159X

DECISION

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

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.; and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. �

1614.405. Complainant alleges he was discriminated against and subjected

to harassment based on his sex (male) and age (47) when from November

1996 through December 1996 after he and three other carriers were given

one hour �hand offs�<2> of their routes after a special inspection of

the office in 1995, the following occurred:

(1) on November 8, 1996, complainant's supervisor (S1) informed

complainant that if he was a professional carrier, his mail could be

prepared quicker and he could leave the office a half hour earlier;

(2) on November 2, 1996, S1 stared at complainant from behind and

again talked about him not being a professional carrier;

(3) on December 3, 1996, complainant's co-workers teased complainant

and informed him that S1 constantly stared at him when he walked by;

on December 6, 1996, S1 gave complainant a pre-disciplinary discussion

falsely accusing him of intentionally delaying dated mail;

on December 7, 1996, S1 again ordered complainant out of the office

prior to his scheduled departure time and again watched him;

on December 13, 1996, S1 performed a special mail count on complainant's

mail;

on December 14, 1996, as a result of the special mail count he performed,

S1 gave complainant an official discussion concerning his working speed;

and

on December 16, 1996, after complainant reported sick due to stress,

S1 informed him that he had to have a medical excuse to return to work.

For the following reasons, the Commission AFFIRM the agency's final

action.

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

Poland, Ohio facility, filed a formal EEO complaint with the agency on

March 5, 1997, alleging that the agency had discriminated against him

as referenced above. On July 2, 1997, the agency issued a final agency

decision (FAD) accepting issue (8) for investigation and dismissing issues

(1) through (7) for failure to state a claim. Complainant appealed and

the Commission found that the complainant stated a cognizable claim and

remanded the entire complaint for an investigation. 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 at which seven witnesses and complainant testified,

the AJ issued a decision finding no discrimination.

The AJ concluded that a conflict existed between complainant and S1

over the one hour hand off. S1 felt that the complainant could be

more efficient when casing mail. S1 reminded complainant that he was

a professional, deemed a pre-disciplinary discussion to be an official

discussion after listening to the complainant's side of the story,

conducted a mail count, required documentation for an absence that

S1 felt was questionable, and issued a letter of warning when his

instructions were not followed. The AJ found, however, that none of

these incidents, when considering the totality of the circumstances,

evidenced harassment, nor disparate treatment based on age or sex. The AJ

further found the evidence presented did not reveal the existence of a

working environment so severe and pervasive as to trigger a violation of

Title VII. The AJ found that the incidents complained of evidenced a

difference of opinion as to a one hour hand off, bargaining agreement

obligations, and agency regulations. The record indicated that S1

observed complainant because it was his job to do so, because he

questioned the necessity of a daily one hour hand off, and because S1

felt that the complainant could case mail more efficiently. The AJ found

that the comment �being a professional� was not derogatory on its face.

S1 elected not to discipline the complainant regarding delay of dated

mail after listening to complainant's explanation. The mail count did

not result in any adverse action. In addition, the AJ noted that the

record showed that agency regulation provided that management could

require documentation for a one day absence and could issue discipline

when instructions were not followed by an employee. The AJ concluded

that the record was devoid of evidence indicating that the complainant's

age and/or sex were factors in any of the supervision's actions. The

agency's final action implemented the AJ's decision.

On appeal, complainant contends that the AJ erred in finding no

discrimination. Complainant's representative attached sixty pages of

the hearing transcript in which seven witnesses testified that they

felt complainant was discriminated against. However, the majority of

the testimony of the witnesses focused on the fact that because S1 felt

complainant could be more efficient when casing mail and that S1 stared

at the complainant in a manner that was evidently noticed by most of his

coworkers. Moreover, although all of the complainant's witnesses responded

in the affirmative when asked whether they believed complainant's civil

or contractual rights were violated, a review of the hearing transcript

clearly revealed that the witnesses were unclear and/or confusing

the difference between the two rights. Except for the unsubstantiated

conclusory statement made by the complainant's witnesses to the contrary,

the testimony of record did not indicate that the complainant's age or

sex were factors in S1's actions.

Pursuant to 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 any of the agency's actions were motivated

by discriminatory animus toward complainant's age or sex. 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 action.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

November 17, 2000

__________________

Date

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 �A hand off is [if] the route is found to be out of adjustment [,

a readjustment] is made [by allowing for] a one hour hand off of [mail

which was not finished being cased and delivered] which [a carrier was]

supposed to receive daily [sic].� (Hearing Transcript, p. 22).