01980838
01-10-2000
Robert Daugherty, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.
Robert Daugherty v. United States Postal Service
01980838
January 10, 2000
.
Robert Daugherty,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny/Mid-Atlantic Region)
Agency.
Appeal No. 01980838
Agency No. 4C-450-0044-97
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of age (DOB 2/11/41) in violation of 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 or about December
12, 1996, when he was forced to bid to another station. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was employed
as a letter carrier at the agency's Anderson Branch in Cincinnati, Ohio
District. Complainant alleged that he was ultimately forced to bid to
another station because of the hostile work environment his immediate
supervisor created. Specifically, complainant maintains that his immediate
supervisor made disparaging remarks regarding his age and his ability to
complete his route. As a result of the alleged harassment, complainant's
doctor ordered him not to return to his immediate supervisor's direction
until the situation resolved itself.
Complainant's supervisor stated that in October 1996, shortly after he
(the supervisor) arrived at the Anderson Branch, complainant requested a
special route inspection because he believed his route was too long. The
supervisor said that, at the time, complainant joked that he would
not be working on the route much longer because he was planning to
retire in December 1996. The supervisor admitted that he responded,
in what he characterized as jest, that "it seemed that employees that
could retire were the biggest complainers." Complainant, on the other
hand, asserted that the supervisor had said, "You old fool, you ought to
retire. All you do is bitch and moan." Several of complainant's coworkers,
who witnessed parts of this encounter, corroborated complainant's claim
that the supervisor called complainant "old" and urged him to retire if
he could not handle his route. Some witnesses described the supervisor's
tone as abusive, while others characterized it as joking.
The union steward approached complainant's supervisor later that
morning about being unprofessional. Complainant's supervisor stated
that he informed his manager that complainant's route would be ideal for
inspection. Complainant's supervisor further asserted that complainant
was subsequently notified of his decision to do the route inspection. Not
long afterwards, however, complainant approached his supervisor and handed
him a pre-filled 3971 (leave form), and indicated that he was ill and
was going to see a doctor. Complainant's supervisor stated that he never
spoke to the complainant after he left on sick leave, per instructions
of his manager and union officials. Complainant apparently remained on
sick leave for approximately three and a half months. He also testified
that he never told complainant he had to bid out of Anderson Branch nor
has he ever told him not to bid back to the Anderson Branch. Complainant
cited no comparative individuals.
Believing he was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a complaint on February 11,
1997. By letter dated April 10, 1997, complainant was advised that his
allegation had been accepted for investigation. At the conclusion of the
investigation, complainant was sent a copy of the investigative file and
notified of the opportunity to request either a hearing before an EEOC
Administrative Judge or a FAD without a hearing. Although complainant
received the file and hearing rights on August 11, 1997, the record shows
that the agency did not receive any response from complainant. Therefore,
the agency issued its FAD on October 2, 1997.
The FAD concluded that complainant failed to establish a prima facie
case of age discrimination because he presented no evidence that
similarly situated individuals not in his protected class were treated
differently under similar circumstances. The FAD then concluded that
the agency articulated legitimate, nondiscriminatory reasons for its
actions, namely, that as a result of complainant's request, complainant's
supervisor stated that he would perform a route inspection in order "to
see how overburdened the route really was. " Furthermore, complainant's
supervisor indicated that complainant requested reassignment to Route
4517, which does not exist at the Anderson Branch. The FAD also noted
that complainant's route was left open for approximately four to five
months until he placed a bid for the route in Sharonville. The FAD found
that complainant had the opportunity to bid his old Route 4464 on the
next bid sheet but did not do so. The FAD also found that complainant
did not establish that, more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination. Finally, the FAD
concluded that complainant failed to show that age was a determinative
factor in the sense that "but for" age, complainant would not have been
subjected to the action at issue. On appeal, complainant makes no new
contentions and the agency requests that we affirm its FAD.
ANALYSIS
Harassment
Initially, we note that the agency failed to address complainant's
harassment claim. Complainant asserts that his supervisor's actions
constituted harassment based on his age. As the FAD failed to provide
an analysis of the harassment claim, the Commission will address it here.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or
prior EEO activity is unlawful, if it is sufficiently patterned
or pervasive. Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with
an employee's work performance. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would find hostile or abusive - is beyond Title VII's purview. "
Harris, 510 U.S. at 22 (1993).
To establish a prima facie case of hostile environment harassment, a
complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class;
and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with
the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. Evidence
of the general work atmosphere, involving employees other than the
complainant, also is relevant to the issue of whether a hostile
environment existed in violation of Title VII. Vinson v. Taylor, 753
F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant part and rev'd in part,
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
Here, the record shows that complainant belongs to a statutorily protected
class, employees over 40 years of age, and that he was subjected to
unwanted verbal conduct concerning his age by his supervisor. However, we
find that complainant has not shown that the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. In this case, while complainant
has cited one incident where his supervisor made an inappropriate age-
related comment, we find that this single incident is not severe or
pervasive enough to create an objectively hostile work environment.
Disparate Treatment
In an ADEA case, complainant may establish a prima facie case by showing
that he is in the protected group (over 40), and was treated less
favorably than other similarly situated employees outside his protected
group. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 878
(1996). In this case, we find that complainant has failed to establish a
prima facie case of age discrimination. While complainant is within the
ADEA's protected group, complainant has failed to present evidence that
similarly situated individuals not in his protected class were treated
differently under similar circumstances. More importantly, complainant
has failed to establish that he was subjected to an adverse action by
the agency. The evidence does not support complainant's claim that he
was forced to transfer to another station or prevented in anyway from
returning from sick leave to his old route.
Accordingly, based on a thorough review of the record, and for
the foregoing reasons, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision finding no
discrimination.
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 [PAGE 5] 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 10, 2000
__________________
Date
1On 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.