01985626
05-03-2000
Timothy Fitzgerald, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Timothy Fitzgerald v. United States Postal Service
01985626
May 3, 2000
Timothy Fitzgerald, )
Complainant, )
)
v. ) Appeal No. 01985626
) Agency No. 4J-604-1175-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On July 16, 1998, Timothy Fitzgerald (hereinafter referred to as
complainant) filed a timely appeal from the June 11, 1998, final decision
of the United States Postal Service (hereinafter referred to as the
agency) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Complainant's attorney received the decision
on June 29, 1998. The appeal is timely filed (see 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.402(a)))<1> and is accepted in accordance with 64 Fed. Reg. 37,644,
37,659 (to be codified as 29 C.F.R. � 1614.405). For the reasons that
follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has
proven, by a preponderance of the evidence, that the agency discriminated
against him on the bases of race (white), sex, and reprisal with regard
to certain events in 1996.
Complainant sought EEO counseling on June 25 and filed his formal
complaint on September 23, 1996. Although he requested a hearing before
an EEOC Administrative Judge, complainant failed to proceed, and the
hearing was canceled. The agency issued the final agency decision (FAD)
at issue herein, finding no discrimination. Complainant has filed the
instant appeal, without comment.
At the time of the events herein, complainant worked as a PTF (part-time
flexible) carrier in Berwyn, Illinois. In his complaint, he alleged
discrimination when (a) he was given job instructions more than once;
(b) he was not given preferred assignments; (c) his tour ended after
six hours; and (4) he was harassed and subjected to a hostile work
environment. Complainant stated that he had filed a large number of
EEO complainants against agency managers in several different regions,
and his EEO activity is well-known at the facility. In response to
his complaint, the agency denied that he was harassed or subjected to
a hostile environment. Managers denied and/or could not recall that he
was given repeated job instructions, denied that he was not given work
assignments in accord with his work status, stated that PTF employees are
subject to irregular assignments and less than eight hour work schedules,
and denied that actions taken in regard to complainant were based on
discriminatory factors.
Harassment Claim
Complainant has alleged that he was subjected to harassment and disparate
treatment based on race, sex, and reprisal. It is well-settled that
harassment based on an individual's race, sex, and prior EEO activity
is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In order to establish a claim of harassment under those
bases, the complainant must show that: (1) he belongs to the statutorily
protected classes and engaged in prior EEO activity; (2) he was subjected
to unwelcome conduct related to his membership in those classes and his
prior EEO activity; (3) the harassment complained of was based on race,
sex, and his prior EEO activity; (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). 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). If the
complainant satisfies the five elements, then the agency is subject to
vicarious liability insofar as the harassment would have been "created
by a supervisor with immediate...authority over the [complainant]."
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002 (June 18, 1999), at 4 (citing,
Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257,
2270 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118
S.Ct. 2275, 2292-93 (1998)).<2>
With regard to complainant's claims, after review of the record before us,
we find that the weight of evidence shows that the events and incidents
alleged by complainant were not based on discriminatory factors and were
not sufficiently severe or persuasive to affect his work environment.
See McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).;
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Bloomer
v. Department of Transportation, EEOC Petition No. 03980137 (October
8, 1999). Complainant has not shown that he was issued multiple
instructions, that he was not given assignments in accord with his
employment status, that he was entitled to an eight-hour shift, or that
any of these actions were taken against him for discriminatory reasons.
We find therefore that complainant was not subjected to a hostile work
environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993).
Disparate Treatment Claims
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976). Initially, for complainant to prevail, s/he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Following this
established order of analysis is not always necessary where the agency
articulates an explanation for its actions. In such cases, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas
analysis--the ultimate question of whether complainant has shown by a
preponderance of the evidence that the agency's action was motivated
by discrimination. United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-14 (1983). It is complainant's burden to
demonstrate by a preponderance of the evidence that the agency's action
was based on prohibited considerations of discrimination, that is, its
articulated reason for its action was not its true reason but a sham
or pretext for discrimination. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
We find that the agency articulated legitimate, nondiscriminatory reasons
for its actions. The agency explained that even if complainant received
multiple instructions, he was subject to supervision at all times; that
he was given assignments to which his status and seniority entitled
him; and that, as a PTF, he was not guaranteed an eight-hour shift.
Complainant has not demonstrated that the agency's reasons were not its
true reasons or that the agency's actions were based on discriminatory
considerations. We find therefore that complainant has not shown that
the agency's reasons for its actions were pretextual and that the agency
did not discriminate against complainant on the bases of race and sex.
With regard to his complaint based on reprisal, even assuming that
complainant established a prima facie case, as stated above, he had not
shown that the agency's reasons for its actions were pretextual. We find
therefore that the agency did not discriminate against complainant in
reprisal for his prior EEO activity.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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:
05-03-00
Date Carlton 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ __________________________
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.
2When the harassment does not result in a tangible employment action,
the agency can raise an affirmative defense to liability which it can
meet by demonstrating: that it exercised reasonable care to prevent
and correct promptly any harassing behavior; and that the employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the agency or to avoid harm otherwise.
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors, at 12. This defense is not available when the harassment
results in a tangible employment action (e.g., a discharge, demotion,
or reassignment). Id. at 7.