01A13985
09-12-2002
Arthur L. Everhart, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arthur L. Everhart v. United States Postal Service
01A13985
September 12, 2002
.
Arthur L. Everhart,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13985
Agency No. 1-H-391-1032-95
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Mailhandler, PS-04, at the agency's General Mail Facility, Jackson,
Mississippi. Complainant sought EEO counseling and subsequently filed
a formal complaint on May 5, 1995, alleging that he was discriminated
against on the bases of race (Caucasian), sex (male), age (57), and
reprisal for prior EEO activity when on March 12, 1995, his Supervisor
was soliciting false information from employees to discredit complainant
and defame his character.
Complainant requested a hearing before an EEOC Administrative Judge (AJ)
after 180 days had elapsed, but prior to the completion of the agency's
investigation. Complainant's file was forwarded to the EEOC and the AJ.
However, on August 6, 1998, complainant withdrew his request for a
hearing and requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race, sex, age, or retaliatory discrimination.
Specifically, the agency concluded that after a review of the
record, witnesses and affidavits, there is no evidence that something
discriminatory happened to complainant on March 12. 1995. The agency
notes that complainant alleged that management was soliciting employees
to make derogatory remarks about him, however, management denies it and
complainant's witnesses do not recall anything. Finally, the agency
concluded that there is no record of any discipline being issued to
complainant as a result of any incident on March 12, 1995.
On appeal, complainant contends that the agency's final decision was out
of order, unethical, unprofessional and prejudicial. Complainant alleges
that from November 1993 to December 1996, management was constantly
harassing, intimidating and provoking him. Complainant also argues that
management retaliated against him for his prior complaints.
ANALYSIS AND FINDINGS
Disparate Treatment
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act); Loeb
v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing that age
was a determinative factor, in the sense that "but for" age, complainant
would not have been subject to the adverse action at issue); and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases), the Commission agrees with the agency that
complainant failed to establish a prima facie case of race, sex, age
or retaliatory discrimination. In reaching this conclusion, we note
that complainant failed to show that similarly situated individuals,
not in his protected group, were treated more favorably. We find that
the record does not support any of complainant's allegations nor does the
record support complainant's assertion that his supervisor was soliciting
false information from employees to discredit complainant.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14,
1998) (citation omitted). 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. 29 C.F.R.� 160.
Regarding complainant's claim of harassment, we find that complainant
failed to establish a prima facie case of hostile work environment
harassment. We find that even if complainant's allegations are true,
they are not sufficiently severe or pervasive to alter complainant's
conditions of employment.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
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
September 12, 2002
__________________
Date