01990742
05-12-2000
Robert Josephsen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Robert Josephsen v. United States Postal Service
01990742
May 12, 2000
Robert Josephsen, )
Complainant, )
) Appeal No. 01990742
v. ) Agency No. 4E-981-0016-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of age (D.O.B. 7/8/21), 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 when on October 1,
1997: (1) he was locked out of his worksite by the Postmaster; and (2)
he was harassed when the Postmaster made remarks concerning his age.
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.
The record reveals that during the relevant time, complainant was employed
as a Highway Contract Route Carrier for the agency's Seabeck, Washington
Post Office ("facility"). The record indicates that complainant has
provided highway contract route service for the agency since approximately
1946. Complainant alleged that on several occasions when he returned from
his route, the facility Postmaster had the facility door locked so his
key would not work. Complainant also alleged that on October 1, 1997,
the Postmaster had a meeting with facility carriers and clerks regarding
safety, and although complainant was not present at the meeting, he was
told by co-workers that the Postmaster stated that complainant was a
hazard due to his age and that he was too old for the job.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on November 29, 1997.
At the conclusion of the investigation, complainant did not exercise
his right to request a hearing and thus the agency issued a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of age discrimination regarding being locked out, because he
presented no evidence that similarly situated individuals not in his
protected classes were treated differently under similar circumstances.
In addition, the FAD found that the agency articulated a legitimate,
nondiscriminatory reason for its action, namely, that complainant was
accidentally locked out of the facility as it is housed in a new building
and the door lock did not work, leading to two other letter carriers
and three clerks being locked out as their keys could not open the door.
The FAD also found that on September 30, 1997, complainant was involved
in an automobile mishap while on the job, and the Postmaster testified
that she commented to complainant's son that he was "getting up in years
for such a demanding job." However, the FAD noted that testimony revealed
that the safety meeting at issue was held the next day and the Postmaster
did not mention complainant's age. On appeal, complainant contends that
the agency failed to consider relevant testimony establishing that the
Postmaster did mention his age at the safety meeting.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979), the Commission agrees with the agency that complainant
failed to establish a prima facie case of age discrimination regarding
his claim of being intentionally locked out of the facility, as he
has failed to demonstrate similarly situated employees not in his
protected class who were treated differently. Even assuming, arguendo,
that complainant established a prima facie case of age discrimination,
the Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
regarding the door lock were a pretext for discrimination. In reaching
this conclusion, we note the credible testimony of the Postmaster that
when she became aware that several employees, including complainant,
were having problems with their keys to the facility, the door was fixed
and no other employees were locked out thereafter.
The Commission notes that the FAD stated that the Postmaster did not
mention complainant's age at the safety meeting. While conceding that
the Postmaster had said to complainant's son (also an agency employee)
that complainant was "getting up in years for such a demanding job,"
the FAD found that "she made the comment because she was concerned
about" complainant. The FAD then concluded that complainant failed
to show that her "explanations [for the comment] were a mere pretext
for discrimination." However, complainant's claim is contending
that these comments constituted harassment based upon his membership
in a protected class. The Commission agrees with complainant that
the Postmaster's remarks related to his age and were inappropriate
and insulting. Nonetheless, the Commission has repeatedly found that
unless the conduct is very severe, a group of isolated incidents will
not be regarded as creating a hostile work environment. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Department of Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995); James v. Department of Health and Human
Services, EEOC Request No. 05940327 (September 20, 1994); see also Harris
v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). A supervisor's remarks
on several occasions unaccompanied by any concrete action are usually not
sufficient to state a claim of harassment. Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996). In the instant case,
the complaint challenges two comments made a day apart and the Commission
therefore finds that complainant has only demonstrated isolated incidents
which are not severe enough to state a claim of harassment. See, e.g.,
Zhang v. United States Postal Service, EEOC Request No. 05940481 (July 17,
1998) ; Banks v. Department of Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995).
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, and for the reasons
stated herein, we affirm the FAD.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 12, 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.