William J. Stokes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionJan 6, 2000
01980783 (E.E.O.C. Jan. 6, 2000)

01980783

01-06-2000

William J. Stokes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


William J. Stokes v. United States Postal Service

01980783

January 6, 2000

William J. Stokes, )

Complainant, )

) Appeal No. 01980783

v. )

) Agency No. 4F-926-0035-97

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 race (Caucasian) and sex (male), in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

Complainant alleges he was discriminated against when his supervisor

harassed him upon his return from a suspension. The Commission accepts

this appeal in accordance with EEOC Order No. 960.001. For the following

reasons, we AFFIRM as clarified the agency's decision.

The record reveals that during the relevant time, complainant was

employed as a part-time Flexible Letter Carrier, at the agency's Glendora,

California Post Office. Complainant alleged that after he returned from

a suspension on October 15, 1996, his supervisor began harassing him.

He stated that his supervisor engaged in the following conduct: made

unnecessary comments about his suspension; threatened him with another

suspension; told him he could not opt for an open route; followed him on

his route for more than an hour; yelled at him for a perceived safety

violation; took away his larger postal vehicle; and required him to

clock-out without allowing him time to unload his vehicle. Complainant

also stated that on November 1, 1996, after he requested sick leave,

his supervisor demanded that he provide medical documentation by the

close of business that day.

Complainant's supervisor (Hispanic, female) responded with the following:

she did not threaten him with another suspension; she did not tell him

that he could not opt for an open route; she performed a routine check of

his driving practices; she did not yell at him regarding a safety hazard

but instead notified him of the problem so that he could correct it;

she took his larger vehicle to assign to a business route with a high

quantity of mail; and she instructed him to clock out immediately so

that he would not go into penalty overtime. She further stated that

on November 1, 1996, she did instruct complainant to provide medical

documentation to substantiate his sickness.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on December 3, 1996.

The agency accepted the complaint for processing, and at the conclusion

of the investigation, complainant was granted thirty days to request

a hearing before an EEOC Administrative Judge or an immediate FAD.

After complainant failed to request a hearing within the thirty-day time

period, the agency issued a FAD finding no discrimination.

The FAD concluded that complainant failed to establish a prima facie

case of race or sex discrimination because he presented no evidence

that similarly situated individuals not in his protected classes were

treated differently under similar circumstances. The FAD nevertheless

concluded that the agency articulated legitimate, nondiscriminatory

reasons for its actions and that complainant did not establish that more

likely than not, the agency's articulated reasons were a pretext to mask

unlawful discrimination. Complainant makes no new contentions on appeal,

and the agency requests that we affirm the FAD.

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 race and sex. 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 work

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).

In reviewing the evidence, we find that complainant has failed to

establish a prima facie case of harassment. Complainant has not presented

sufficient credible evidence demonstrating that he was subjected to

unwelcome conduct based on his protected classes. While he may have

perceived his supervisor's actions as unwelcome and harassing, nothing

in the record indicates that her actions were anything other than her

performing her supervisory duties. We also find that complainant failed

to demonstrate any racial and gender animus on the part of his supervisor.

Finally, we find that the evidence failed to show that the conduct in

question was either severe or pervasive enough to establish a hostile

work environment. We conclude that a reasonable person would not find

the conduct in question hostile or abusive.

As for complainant's disparate treatment claim, we find that complainant

failed to establish a prima facie case of race or sex discrimination.

While complainant asserts that he received less favorable treatment,

other than his bare assertion, he provides no credible evidence to

support his statement. Further, we find nothing in the record from

which to infer that any of the supervisor's actions were as a result

of discriminatory animus toward complainant's race or sex. Therefore,

after a careful review of the record, including arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD.

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:

January 6, 2000

Date Carlton M. 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

__________________________

Equal Employment Assistant

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.