0199430
11-16-2001
Aulby L. Gillett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Aulby L. Gillett v. United States Postal Service
01994302
November 16, 2001
.
Aulby L. Gillett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994302
Agency No. 4-G-760-0089-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleged that he was
discriminated against on the basis of disability when on September 25,
1997, he was issued a 14-day suspension,<2> and on November 16, 1997,
he was subjected to a hostile working environment when his supervisor
snatched keys from him and tossed them across the parking lot (key
incident).
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's San Angelo, Texas,
facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
April 17, 1998. At the conclusion of the investigation, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge or alternatively to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant was a person with a
disability. With respect to the September 25, 1997, notice of suspension,
the agency indicated that complainant was charged with using abusive
language toward a co-worker on two separate occasions, July 30, 1997,
and August 17, 1997. The agency further noted that nothing in the record
supported complainant's claim that hearing employees who behaved as he
did were treated more favorably. In the agency's view, complainant failed
to establish a prima facie case of disparate treatment. The agency also
emphasized that the agency's Customer Service Supervisor explained the
reasons for the suspension and indicated that at the time of the incident
complainant had a history of disruptive and violent behavior. Accordingly,
the agency emphasized that legitimate, nondiscriminatory reasons had
been offered for the discipline. With respect to the hostile environment
allegation, the FAD found that the November 16, 1997, incident complained
of did not rise to the required level of severity or pervasiveness.
On appeal, complainant acknowledges, with respect to the July 30, 1997,
incident, that he used abusive language toward a coworker, but argues that
he was responding to the coworker's abusive language against him, and that
the agency did not discipline that person. Complainant also argues that
his supervisor was not disciplined for the November 16, l997 key incident.
With respect to the hostile environment allegation, complainant argues
that the allegation was not just limited to the November 16, 1997,
incident, but also included inter alia anonymous notes and signs.<3>
ANALYSIS AND FINDINGS
Disparate Treatment
The Rehabilitation Act prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. � 1630. In analyzing a disparate
treatment claim under the Rehabilitation Act, where the agency denies
that its decisions were motivated by petitioner's disability and there
is no direct evidence of discrimination, we apply the burden-shifting
method of proof set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health
for Jamaica Cmty Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks
v. WMATA, 179 F.3d 929 (D.C. Cir. 1999). Under this analysis, in order
to establish a prima facie case, complainant must demonstrate that: (1)
he is an "individual with a disability"; (2) he is "qualified" for the
position held or desired, i.e. can perform the essential functions with
or without accommodation; (3) he was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give
rise to an inference of discrimination. Lawson v. CSX Transp., Inc.,
245 F.3d 916 (7th Cir. March 26, 2001). The burden of production then
shifts to the agency to articulate a legitimate, non-discriminatory
reason for the adverse employment action. In order to satisfy his
burden of proof, complainant must then demonstrate by a preponderance
of the evidence that the agency's proffered reason is a pretext for
disability discrimination. Id.
Complainant is deaf (hearing impaired). Assuming arguendo that
complainant is a person with a disability and has established a prima
facie case of disparate treatment, the agency articulated legitimate,
non-discriminatory reasons for the 14-day suspension. Employee A described
the incident that occurred between herself and complainant on July 30,
1997. In her statement, Employee A admitted that during the incident
she called complainant a derogatory name, and that she knew it was
wrong, but that she spoke out of anger. It is also acknowledged that no
disciplinary action was taken against Employee A after this incident.
Complainant also emphasizes that his supervisor was not disciplined
for the key incident. However, the notice of suspension indicates
that complainant was not disciplined just because of the July 30,
1997, incident, but also because of an August 17, 1997, incident.
The September 25, 1997, notice of suspension also indicates that
�virtually every supervisor [complainant has] had [including his then
current supervisor and seven other supervisors] have had one or more
discussions with [complainant] about [his] temper and use of abusive
language and non-verbal or physical displays directed against other
employees as well as insubordinate behaviors.� On appeal, complainant
has not addressed these additional bases for the notice of suspension.
Accordingly, we find that complainant has not shown pretext.
Hostile Work Environment
According to complainant, he was accosted by his supervisor early one
morning (approximately 2:30 a.m.) in the parking lot of a restaurant.
Complainant was supposed to open the post office door at 1:50 a.m.
Complainant called the supervisor to open the door of the post office,
because the locks had been changed and he had not been given a new key.
The locks had evidently been changed while complainant was serving
his suspension. Other employees were issued new keys. Complainant was
not. According to complainant, his supervisor jerked complainant's key
chain from complainant's hand and threw the old key across the parking
lot. His supervisor denied complainant's account. However, another
witness confirmed complainant's version. In addition, complainant
submits evidence of anonymous notes and signs that were slipped in
among complainant's paperwork. (Appeal Attachments A, B, C, D and E).
Complainant additionally points to a December 1993 incident in which his
TTY device (used by the deaf to communicate with others via telephone)
was missing from its usual storage place and was subsequently discovered,
in a damaged condition, in a dumpster.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an �objectively hostile or abusive
work environment� is created when �a reasonable person would find [it]
hostile or abusive: and the complainant subjectively perceives it as
such.� Harris, 510 U.S. at 21-22. Thus, not all claims of harassment
are actionable.
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No. 05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable person in
the complainant's circumstances would have found the alleged behavior to
be hostile or abusive. Even if harassing conduct produces no tangible
effects, such as psychological injury, a complainant may assert a cause
of action if the discriminatory conduct was so severe or pervasive
that it created a work environment abusive to employees. See Rideout
v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995)
(citing Harris v. Forklift Systems, Inc., 510 U.S. at 22) req. for
recons. den. EEOC Request No. 05970995 (May 20, 1999). Also, the trier
of fact must consider all of the circumstances, including the following:
the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.
Harris, 510 U.S. at 23.
With respect to the December 1993, incident complainant acknowledges that
the agency responded appropriately, including a thorough search for the
device and issuing a notice describing the destruction of the device as
�an act of malice with intent to harm.� Even assuming arguendo that
the notes and signs assertedly slipped in among complainant's papers
were directed at complainant, most of the notes, while objectionable,
are not necessarily based on complainant's disability. The November
1997 incident, while arguably physically threatening, was isolated.
Complainant has not indicated that the totality of the alleged actions
unreasonably interfered with his work performance. Complainant's
allegations have covered almost four years. We conclude that the evidence
has not sufficiently met the Harris standard.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, 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
November 16, 2001
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Complainant was suspended for l4 days effective October 20, 1997.
However, as the result of a pre-arbitration grievance settlement, the
suspension was expunged from his record, and complainant was found to
be entitled to 80 hours back pay at straight time, including any Sunday
premium and/or night differential which he would have worked.
3 In addition, complainant submitted that he requested both formally
and informally that he be allowed to use a beeper at work so that when
he was alone at the post office he could be contacted via beeper and
then he could call the person back on TTY Relay, a telephone service for
the deaf. This is a new allegation of discrimination. If complainant
wishes to pursue this allegation, he shall initiate contact with an EEO
counselor regarding this allegation within 15 days after he receives
this decision. The Commission advises the agency that if complainant
seeks EEO counseling regarding the new allegation within the 15 day
period, the date the complainant filed his appeal shall be deemed to be
the date of the initial EEO contact, unless he previously contacted a
counselor regarding these matters, in which case the earlier date would
serve as the EEO counselor date. See Parker v. Department of the Army,
EEOC Request No. 05960025 (August 29, 1996).