0120073343
09-26-2007
Steven V. Harvey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven V. Harvey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073343
Agency No. 1H321000107
DECISION
On July 21, 2007, complainant filed an appeal from the agency's June 27,
2007, final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Electrical Technician at the agency's Daytona Beach Processing and
Distribution Facility facility in Daytona Beach, Florida. On December 18,
2006, complainant filed an EEO complaint alleging that he was subjected
to unlawful harassment based on his age (D.O.B. 09/28/54) when: (1) on
October 4, 2006, he was issued a Letter of Warning (LOW) for failing to
follow instructions of his supervisor during an incident that occurred on
September 28, 2006. Complainant further alleged that he was subjected
to harassment based on retaliation when: (2) on November 27, 2006, his
sick leave request for September 29, and October 1, 2006 was changed to
Absence Without Leave (AWOL); and (3) he was issued a collection letter
for the sick leave he took on those days.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that he was
subjected to discrimination or a hostile work environment as alleged.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). Preliminarily,
we note that the agency erred when it framed complainant's claim as one
comprised of a hostile work environment when he was issued the LOW on
October 4, 2006. Rather, the record reflects that complainant alleged in
his complaint of discrimination that he was subjected to a hostile work
environment when his supervisor (S1) denied his request for assistance and
"screamed at [him]" to go back to work. Complainant felt threatened and
left the building. Therefore, we frame claim (1) as whether complainant
was subjected to harassment based on his age when on September 28, 2006,
S1 denied him the assistance he requested, screamed at him to go to work
and subsequently, on October 4, 2006 issued complainant an LOW.
We find, however, that complainant failed to establish that he was
subjected to a hostile work environment as he alleges with regard to
claims (1), (2) or (3). In order to establish a claim of harassment based
on age or retaliation complainant must show membership in a protected
group, and severe or pervasive harassing conduct, such that it alters
the conditions of her employment, that would not have occurred except
for his membership in that protected group. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 23 (1993) Henderson v. City of Dundee, 682 F.2d 897,
903-4 ( 11th Cir. 1982).
We find that complainant failed to show that the incidents in claim (1),
(2) or (3), occurred due to his age or prior EEO activity. The record
reflects that complainant failed to put forth sufficient evidence to
corroborate his assertions that the agency took the actions that it did
as a result of his age or prior EEO activity. Specifically, complainant
failed to offer any evidence to substantiate his assertions that S1
treated him poorly with regard to claim (1) due to his age. Complainant
merely states that S1 favors a younger employee. We find that this alone
is insufficient to establish that, assuming S1 screamed at complainant,
it was due to unlawful animus toward his age. With regard to the LOW,
complainant admits that he left the premises after S1 screamed at him.
Although he stated that he left because he felt threatened and wished
to separate himself from S1, the record reflects that he did not have
permission to leave the premises. As such, complainant failed to show
that he was issued the LOW due to his age. With regard to claims (2)
and (3), the record reflects that the agency requested documentation
to substantiate complainant's request for sick leave. Complainant's
failure to provide the documentation resulted in his being placed on AWOL
status and eventually required that he pay back for the sick pay he was
originally given. We find no persuasive evidence that indicates that
the agency acted with retaliatory animus when it requested documentation
from complainant and took the subsequent actions when he failed to
provide the documentation. Even taking all the incidents together,
we find that complainant failed to establish that he was subjected to
unlawful harassment due to his age or prior EEO activity. Further, we
note that nothing in the record supports an inference of discriminatory
or retaliatory animus. Therefore, based on a thorough review of the
record, we affirm the agency's FAD finding that complainant failed to
establish that he was subjected to unlawful harassment as he alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
___9/26/07_______________
Date
2
0120073343
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073343