01980522
02-18-2000
Odis D. Carver, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.
Odis D. Carver v. United States Postal Service
01980522
February 18, 2000
Odis D. Carver, )
Complainant, )
) Appeal No. 01980522
v. ) Agency No. 4H350137095
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Odis D. Carver (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (white), sex (male), reprisal (prior
EEO activity), and age (64 at time of relevant events), in violation
of Title VII of the Civil Rights Act of 1964, 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> Complainant alleges he
was discriminated against on August 15, 1995, when he was confronted
by a management official and his own supervisor in a harassing manner
regarding the duties he was performing. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a PS-04 Mailhandler, at the agency's Montgomery, Alabama facility.
Complainant alleged that on August 15, 1995, he was performing his
duties when a supervisor (S2) asked him why he was not picking up
the letters in the flat sorter area every hour. Complainant asked
S2 why she was asking him about his work, since she was not his boss.
Complainant's supervisor (S1) was standing nearby and, after hearing
this exchange, asked complainant why he had not picked up the letters
every hour. Complainant claimed that after the remainder of the crew
left, S1 reprimanded and belittled him for questioning S2 and refused
to listen to his explanation for why he had not retrieved the letters
every hour. Believing he was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a complaint on October
31, 1995. At the conclusion of the investigation, the agency sent the
investigative file to complainant, with appeal rights attached.
On October 17, 1997, the agency, noting that it received no hearing
request from complainant, issued a FAD. The FAD found that complainant
neither provided evidence to substantiate his claim that he was confronted
about his duties due to his race, sex, age, or retaliation<2>, nor
established that he was harassed by management in any way. The FAD
concluded that complainant therefore failed to prove by a preponderance
of the evidence that he was the victim of intentional discrimination.
On appeal, complainant contends that he requested a hearing before an
administrative judge immediately after he received the investigative file.
The agency does not respond to this contention.
ANALYSIS AND FINDINGS
Complainant contends that he requested a hearing immediately after
receiving the investigative file and argues that the agency must have
lost, misplaced, hidden, or thrown away his request. Complainant's
contention alone, however, does not suffice to prove he timely requested
a hearing. According to Commission regulations, a document shall be
deemed timely if it is delivered in person or postmarked before the
expiration of the applicable filing period, or, in the absence of a
legible postmark, if it is received by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. � 1614.604(b).
Since complainant did not provide proof of a timely postmark for his
hearing request, his request could only be timely if the agency received
it within five days of the expiration date. According to the agency,
however, it never received a hearing request from complainant. Therefore,
we find that any request made by complainant for a hearing is untimely.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
the Commission finds that complainant failed to establish a prima
facie case of race, sex, or age discrimination because he failed to
establish that similarly situated individuals not within his protected
classes were treated more favorably in similar circumstances. Moreover,
complainant offered no other evidence that raises an inference of sex,
race, or age discrimination.
Complainant also failed to establish a prima facie case of reprisal
discrimination. Although complainant engaged in prior EEO activity
of which the relevant supervisors were aware, he failed to establish
the necessary causal connection between this prior activity and the
adverse action. Commission precedent holds that the necessary causal
connection may be shown by evidence that the adverse action followed the
protected activity within such a period of time and in such a manner
that a reprisal motive can be inferred. See Chambers v. Agency for
International Development, EEOC Appeal No. 01965287 (August 11, 1998),
citing Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Here, complainant offered no evidence of a causal connection, other
than to note the numbers and dates of two prior EEO complaints. The
more recent of these complaints was filed in March 1995, five months
prior to the action in question. Complainant cannot meet his burden of
raising an inference of retaliation by relying on this time period alone.
Because he has offered no other evidence, he has failed to establish a
prima facie case.
Accordingly, the agency's finding of no disparate treatment on the bases
of race, sex, age, or reprisal is AFFIRMED.
Turning now to complainant's claim of harassment, in Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that
harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of the complainant's employment. The Court explained
that an "objectively hostile or abusive work environment" is created
when "a reasonable person would find [it] hostile or abusive and the
complainant subjectively perceives it as such. Harris, supra at 21-22.
Thus, not all claims of harassment are actionable. Where a complaint
does not challenge an agency action or inaction regarding a specific
term, condition or privilege of employment, a claim of harassment is
actionable only if, allegedly, the harassment to which the complainant
has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment.
In the instant case, complainant alleged that he was harassed by S1
and S2 when he was questioned about the performance of his duties
and, later that same day, reprimanded for refusing to respond to S2's
questions about his performance. This allegation fails to state a claim
of harassment. Even viewed in the light most favorable to complainant,
this claim merely describes a common workplace occurrence�a supervisor
questioning an employee about work duties. Unless it is reasonably
established that the actions were somehow abusive or offensive, and
were taken in order to harass complainant on the basis of any of his
protected classes, such everyday events are not sufficiently severe
or pervasive so as to offend the general sensibility of an individual
experiencing such occurrences in the workplace. See Wolf v. United States
Postal Service, EEOC Appeal No. 01961559 (July 23, 1998); see also Long
v. Veterans Administration, EEOC Appeal No. 01950169 (August 14, 1997).
As the agency noted, complainant offered no evidence to establish that
the actions in question were abusive or that S1 and/or S2 intended to
harass him. Accordingly, complainant failed to prove harassment.
Therefore, after a careful review of the record, including complainant's
contention on appeal and arguments and evidence not specifically addressed
in this decision, we affirm the FAD.
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).
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:
2/18/00
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:
_____________
Date
________________________
Equal Employment Assistant
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.
2 The FAD simply concluded that complainant failed to meet his burden
of proving discrimination by a preponderance of the evidence, rather
than first confronting the question of whether he established a prima
facie case of discrimination.