01970124
03-29-2000
Patrick M. Travis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro Area), Agency.
Patrick M. Travis v. United States Postal Service
01970124
March 29, 2000
Patrick M. Travis, )
Complainant, )
)
v. ) Appeal No. 01970124
) Agency No. 4B-020-1039-96
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(N.E./N.Y. Metro Area), )
Agency. )
______________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of discrimination on the bases of sex (male)
and reprisal (prior EEO activity), in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> 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 FAD.
BACKGROUND
Complainant, a City Carrier, PS-05, with the agency's Cambridge Post
Office, Cambridge, Massachusetts, filed a formal complaint on April 2,
1996, alleging that he was subjected to harassment when: (1) on December
20, 1995, he was taken off of his bid assignment and told to case mail on
route 4013; (2) on December 26, 1995, he was threatened and intimidated
on the first day of his new assignment; (3) on December 27, 1995, he was
told to change from wearing sneakers to black shoes; (4) on December 27
and 29, 1995, his supervisor was loading his ledge; (5) on December 28,
1995, he was questioned regarding his frequent use of the bathroom;
(6) on December 29 and 30, 1995, management questioned his time on the
route; (7) on January 11, 1996, he was denied time to update his rack
strips and a supervisor stated that he was never at his rack; (8) on
January 15, 1996, he was told he could not use a stool and a supervisor
refused to take his phone call while complainant was on his route; and
(9) on January 27, 1996, management conducted street supervision during
complainant's lunch. Complainant alleged that all of these incidents
were in reprisal for his prior EEO activity, and that the fifth claim
also constituted sexual harassment.
Following an investigation of this complaint, the agency informed
complainant that he could request either an EEO administrative hearing
or a final agency decision (FAD), based on the existing record.
When complainant failed to respond, the agency issued a FAD.
In its FAD, the agency found that management articulated legitimate,
nondiscriminatory reasons for the actions taken. In general, the
agency noted the Postmaster's testimony that he did not believe that
anyone was harassing complainant, and that complainant received a lot of
attention because he did not do his work proficiently and did not follow
instructions. The agency then articulated specific reasons for each of
the actions taken. As for the first claim, Supervisor 1 testified that
complainant was taken off his bid assignment to case mail on route 4013
due to a thirty percent drop in mail volume because of weather conditions.
Supervisor 1 noted that it was standard procedure to move carriers off
their bid assignments when volumes were down. Regarding complainant's
claim that he was threatened and intimidated on the first day of his new
assignment, both Supervisors 1 and 2 denied harassing complainant on the
first day of his new route and both denied any knowledge of complainant's
prior EEO activity. In addition, Supervisor 2 stated that he never told
complainant he would change his start time to 8:00 a.m., as alleged
by complainant, and that he did not perform a route inspection until
June 1, 1996. As for telling complainant to change from sneakers to
black shoes on December 27, 1995, Supervisor 2 testified that he told
several employees to change into proper footwear on that date because
his manager asked him to ensure that all employees wear proper footwear
in inclement weather.
Regarding complainant's fourth claim, that his supervisor loaded his
ledge on December 27 and 29, 1995, both Supervisors 1 and 2 stated that
carriers' ledges are loaded with letter mail to get an accurate count
of the mail and to determine a carrier's productivity. Specifically,
a carrier should be able to case four feet of mail per hour and a ledge
of mail is four feet. As for Supervisor 1's questioning complainant
about his frequent use of the bathroom, which complainant described as
"sexual harassment" in both his complaint and affidavit, Supervisor 1
testified that he had concerns about complainant because complainant
used the bathroom three to four times in an hour. He further noted
that on December 28, 1995, he observed complainant eating lunch in the
parking lot of a Burger King restaurant, and that complainant indicated
he ate lunch there so he could use the bathroom. As for management's
questioning complainant's time on his route on December 29, and 30,
1995, Supervisor 3 testified that he questioned the length of time it
took complainant to complete his route because complainant was taking
five hours of street time to do what had been a three-hour route.
Regarding complainant's claim that Supervisor 1 denied him time to
update his rack strips on January 11, 1996, Supervisor 1 stated that he
was not aware of this issue because complainant's unit supervisor would
normally authorize time to update rack strips. As for complainant's
being told that he could not use a stool, Supervisor 1 testified that
he told complainant he could not use a stool to case mail because
an agency handbook stated that carriers should not use a stool when
casing mail if it impeded office productivity. Supervisor 1 noted that
complainant's productivity was far below standards. As to complainant's
claim that management conducted street supervision on January 27, 1996,
no supervisor could attest to seeing complainant on that particular date
or at the particular location which complainant named. Nevertheless,
the agency noted that no adverse action was taken against complainant
as a result of any incident on January 27, 1996. Finally, the agency
concluded that complainant failed to establish that management's actions
were motivated by unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends that he established a prima facie case
of discrimination based on reprisal. The agency contends that management
articulated legitimate, nondiscriminatory reasons for the actions taken,
which complainant failed to prove were pretexts for discrimination.
ANALYSIS AND FINDINGS
It is well settled that sexual harassment in the workplace constitutes
an actionable form of sex discrimination under Title VII. See Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of sexual harassment, complainant must show that: (1) he belongs
to a statutorily protected class; (2) he was subjected to unwelcome
conduct related to his gender, including sexual advances, requests for
favors, or other verbal or physical conduct of a sexual nature; (3) the
harassment complained of was based on sex; (4) the harassment had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d. 897 (11th Cir. 1982); see also
McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc, EEOC Notice
No. 915.002 (March 8, 1994).
In the case at hand, we find that complainant has failed to establish
a claim of sexual harassment. Although Supervisor 1's questioning of
complainant's frequent trips to the bathroom may have been very personal,
the record does not establish that complainant was subjected to unwelcome
sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature.
Complainant also alleges that he was subjected to harassment based
on reprisal. To prevail on a claim of harassment on this basis, a
complainant must show that: (1) he belongs to a protected group; (2)
he was subjected to harassment that was sufficiently severe or pervasive
to alter the conditions of employment and create an abusive or hostile
environment; and (3) the harassment was based on an impermissible
factor such as reprisal. See generally Taylor v. Department of the
Air Force, EEOC Request No. 05920194 (July 8, 1992). In Rideout
v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995), the Commission stated that in order to determine whether a work
environment is objectively hostile or abusive, the trier of fact must
consider all of the circumstances, including the following: 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. See also
Harris v. Forklift Systems, Inc., 510 U.S 17, 23 (1993).
We find that complainant has failed to establish that he was subjected
to a hostile or abusive work environment based on reprisal. First,
we note that management has provided adequate justification for all of
its actions, which were thoroughly outlined in the FAD. We note that
complainant failed to respond to management's reasons for its actions
in his statement on appeal. Second, the record does not establish that
any of these actions were based on reprisal for complainant's prior EEO
activity. Given that the agency has provided sufficient justification
for all of the actions which complainant challenges, we find that he
failed to establish that he was subjected to a hostile or abusive work
environment based on reprisal. Accordingly, we find that complainant
was not discriminated against as alleged.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the agency's final decision
and find that complainant has failed to prove, by a preponderance of
the evidence, that he was discriminated against as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
March 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.