01a52334
04-25-2006
Joseph P. Zurlo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area) Agency.
Joseph P. Zurlo v. United States Postal Service
01A52334
April 25, 2006
.
Joseph P. Zurlo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area)
Agency.
Appeal No. 01A52334
Agency No. 1A-106-0064-02
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Mailhandler at the agency's Westchester Processing and Distribution
Center, White Plains, New York. Complainant sought EEO counseling and
subsequently filed a formal complaint on September 10, 2003. He alleged
that he was discriminated against on the bases of race (Caucasian) and
sex (male) when he was subjected to a hostile work environment. More
specifically, complainant alleged that the agency ignored his complaints
about African American co-workers' harassment and threats of violence.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to demonstrate
that its actions in response to his complaints about a co-worker's
threats were inadequate because it promptly investigated the incidents
and disciplined both complainant and the co-worker for their behavior.
The agency also concluded that other incidents involving other co-workers
were also addressed in a timely manner and resulted in discipline for
those involved. In terms of the disciplinary actions that complainant
received, the agency found that it had legitimate reasons for disciplining
complainant because his actions contributed to the altercations with his
co-workers. According to the agency, complainant failed to show that its
reasons for imposing discipline were a pretext for discrimination.
On appeal, complainant contends that certain second hand statements he
heard from others in the workplace confirm that one of his supervisors
harbored racial animus against Caucasian employees. He also contends
that this same supervisor failed to address inappropriate behavior of
certain other employees, meaning that the agency took little action
against employees for creating a hostile work environment. He attached
documentation of an investigation into his allegations regarding a
co-worker. The agency submitted no additional comments on appeal and
rests on the findings and conclusions of its FAD.
Under the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), complainant must prove that: (1) he was subjected
to harassment that was sufficiently severe or pervasive to alter the
terms or conditions of employment and create an abusive or hostile
work environment, and (2) the harassment was based on membership in a
protected class. See Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 3, 6 (Mar. 8, 1994).
Applying these principles to the instant case, the Commission finds
that complainant failed to establish that any of the disputes and
altercations he had with his co-workers were based on his membership in
a protected class. Therefore, he failed to establish an inference that
the work environment was tinged with racial and/or sex- based animus.
We also find that complainant failed to present evidence that more
likely than not, the agency's reasons for disciplining him for his role
in the reported incidents were a pretext for discrimination. That is,
complainant did not dispute that the disciplinary actions he received
were justified by the agency's workplace rules and were consistent with
discipline given to other employees. He also did not dispute that those
employees involved in the workplace disputes and who were outside of
his protected classes, received appropriate discipline.
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 agency's
final decision.
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
April 25, 2006
__________________
Date