0120103713
04-12-2012
Gregory W. Cales, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Gregory W. Cales,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120103713
Agency No. 4C-250-0003-10
DECISION
On September 9, 2010, Complainant filed an appeal from the Agency’s July
28, 2010, final decision concerning his equal employment opportunity (EEO)
complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the
appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s Main Post Office in Princeton,
West Virginia. The record indicated that Complainant injured his left
shoulder in August 2008. He had rotator cuff surgery on that shoulder;
however it had not fully healed. In August 2009, Complainant provided
a note from his Orthopedic Surgeon indicating that he had to work a
normal eight hour workday without overtime or heavy workloads until his
shoulder was given enough time to heal. From September to December 2009,
Complainant indicated that he needed required auxiliary assistance for
overtime help. Complainant noted that management had employees case his
mail causing more mail to be delivered. The Postmaster indicated that
she provided assistance to case Complainant’s mail so that he could
limit the use of his hand and did not have to reach up to the higher
shelves which were limited due to his shoulder condition. Further,
the Agency argued that Complainant was provided this assistance to allow
him to leave for his route earlier.
In addition, in October 2009, Complainant indicated that he was subjected
to sexual harassment. Complainant asserted that the Postmaster (female)
placed her hand on him and approached him in an extremely hostile manner:
yelling and cussing at him. As such, Complainant claimed that the
actions of the Postmaster constituted sexual harassment.
On January 19, 2010, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of sex (male) and disability
(left shoulder) when:
1. From September to December 2009, Complainant was denied route
assistance which forced him to work overtime in violation of his medical
restrictions; and
2. On October 7, 2009, the Postmaster subjected Complainant to sexual
harassment when she threatened him verbally and physically.
At the conclusion of the investigation, the Agency provided Complainant
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). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
As to claim (1), the Agency found that Complainant failed to establish
his prima facie case of discrimination based on sex. The Agency noted
that Complainant did not show that other similarly situated individuals
outside of his protected classes were treated differently. Finding that
Complainant failed to establish any proof of discrimination based on
sex, the Agency determined that Complainant failed to show that he
was subjected to disparate treatment due to his sex. To the extent
Complainant alleged a violation of the Rehabilitation Act; the Agency
found that Complainant did not establish that he was an individual with
a disability. Therefore, the Agency concluded that Complainant failed
to show that he was subjected to discrimination with regard to claim (1).
As to claim (2), the Agency found that Complainant failed to establish a
prima facie case of harassment. The Agency determined that Complainant
did not show that the alleged harassment occurred because of his sex or
that the alleged harassment was sufficiently severe or pervasive enough
to establish a claim of harassment.
ANALYSIS AND FINDINGS
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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
As an initial matter, we find that Complainant's appeal is timely
filed. The Agency argues that the September 9, 2010 appeal is untimely
because the 30-day time-limitation began to run when the final decision
was received at complainant's address of record on August 2, 2010.
In support of the Agency’s assertion, the Agency provided a print out
of its Internet Inquiry of the Track and Confirm number associated with
the Agency’s final decision. The form merely stated that the item
was delivered to a location in the zip code 24712 on August 2, 2010.
We find that such evidence is insufficient. The Agency failed to provide
evidence that the final decision was received by Complainant at that time,
or to establish a presumption of constructive receipt of the dismissal
by providing a signature of receipt by another party. See 29 C.F.R. §
1614.402; Pazinick v. U.S. Postal Serv., EEOC Request No. 05930337
(Sept. 10, 1993). As such, we find that the Agency failed to show that
the appeal was filed in an untimely manner.
As to claim (1), we note that Complainant alleged that he was denied a
reasonable accommodation. Under the Commission's regulations, an agency
is required to make reasonable accommodation to the known physical
and mental limitations of an otherwise qualified individual with a
disability unless the Agency can show that accommodation would cause
an undue hardship. 29 C.F.R. § 1630.9. As such, we shall only review
Complainant’s claim of denial of reasonable accommodation as a claim of
discrimination in violation of the Rehabilitation Act. For the purposes
of analysis, we assume Complainant is an individual with a disability.
The record indicated that the Postmaster provided Complainant with
auxiliary assistance to case mailing the morning. Complainant alleged
that the auxiliary assistance resulted in additional mail being cased;
thereby increasing the mail on his route. The record showed that
the assistance was provided to Complainant to allow him to leave the
post office earlier; not later as Complainant has asserted. Further,
a review of record shows that there were days when auxiliary assistance
was provided and Complainant did not work overtime. Complainant provided
a list of dates which he believed had higher delivery volumes. When the
Commission compared those dates to Complainant’s time, the Commission
could not find a pattern of overtime by Complainant on those dates.
There were dates when Complainant was provided casing assistance and
he returned to the station under his expected time. Further, there is
no evidence showing that the Postmaster required Complainant to work
overtime. Complainant was expected to conduct his route within the
time provided to him which was within his eight-hour day. There is no
indication that Complainant was asked to work overtime by the Postmaster
or that he was subjected to disciplinary action. Complainant also averred
that he could perform the duties of his assignment. Therefore, upon
review of the record and the facts of this case before the Commission,
we cannot find that the Agency’s actions constituted a violation of
the Rehabilitation Act with respect to claim (1).
In claim (2), Complainant alleged he was subjected to sexual harassment
when the Postmaster threatened him and touched him on his shoulder.
It is well-settled that harassment based on an individual’s sex 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
class; (2) he was subjected to unwelcome conduct related to his membership
in that class; (3) the harassment complained of was based on sex; (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 Sys. Inc.,
EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, Complainant alleged that on one occasion the
Postmaster touched him and would verbally threaten him. We note that
Complainant summarily stated that he did not appreciate the Postmaster
“cussing or harassing” him. We note that Complainant did not provide
any more specific details as to how or what he found the Postmaster’s
were to constitute her behavior being considered “out of line and
wrong.” Based on the lack of evidence or specificity by Complainant,
we find that Complainant has failed to show that the alleged events,
if taken together, were sufficiently severe or pervasive to establish
a claim of sexual harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 12, 2012
__________________
Date
2
0120103713
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103713