0120090732
05-12-2009
Christopher O'Donnell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Christopher O'Donnell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090732
Agency No. 4K-290-0057-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 17, 2008 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant alleged that the agency discriminated against
him on the bases of religion (Catholic), age (57), and reprisal for
prior protected EEO activity when from February 13 through 27, 2008,
he was harassed, resulting in him turning in his identification with a
note indicating he was leaving the job.
Following an investigation, complainant was notified of the right to
request a hearing and made no request. Thereafter, the agency issued
a final decision finding no discrimination.
Complainant was hired as a transitional city carrier effective February
2, 2008, and was stationed at the Simpsonville Mail Post Office in
South Carolina. He attended orientation and a carrier academy from
February 4, 2008 through February 14, 2008. He contended that the
harassment commenced February 13, 2008, when he received a call from
the Postmaster saying that he would not be a postal employee very long
if he continued not reporting to work. The postmaster countered that
he called complainant and inquired what day he would report to the
Simpsonville post office. Complainant contended that when he reported
to work on February 15, 2008, the Postmaster asked if he really wanted
to go through with this; and when he gave the Postmaster his time card
from school, the Postmaster threw it across his desk saying he should
have submitted it the prior week. The Postmaster countered that he
never asked complainant if he wanted to go through with his job, never
threw the time card, and that he simply told complainant that because
the timecard was submitted after the end of the pay period, a payroll
adjustment would unfortunately have to be made to pay him for time
after the pay period ended. Complainant contended that on February
19, 2008, the Postmaster told him to deliver a rural route he had not
trained on, he was not given a scanner, and when he returned to the
station the Postmaster told him to "get the hell off postal grounds."
The Postmaster, who was not specifically asked about the route training,
countered that complainant forgot the scanner, and was never told to
get off postal premises. According to the Postmaster, when complainant
returned to the station he asked about his performance of spending nearly
five hours delivering one hour of mail, and complainant responded he did
not care, albeit the next day he said he cared. The Postmaster added
that when complainant told him he was off the clock in response to his
question about it, he told complainant to go home and return the next day.
In response to other inquiries the Postmaster stated complainant received
the same standard training as every employee, and more on the job training
than the average employee.
Complainant contended that on or about February 23, 2008, he was asked by
supervisor K.A. why his cellular phone was off, and complainant responded
he kept it off in church. According to complainant, K.A. asked why
he went to church, asked him about his religion, and told him he must
call in every morning to get his hours. K.A. countered that he never
discussed religion with complainant, and that he asked complainant if
he had a cellular phone in case they needed to get in touch, to which
complainant said no but he was working on getting one. K.A. did not
recall any incident concerning complainant being late to work due to
church attendance.
Complainant contended that another supervisor told him he was too
slow, but this supervisor indicated he was not involved in reprimanding
complainant for being slow. Complainant stated that the agency refused
to give him his paycheck, but the Postmaster stated complainant received
his paychecks the same day of payroll as everyone else, except the
two he received after his resignation, which were hand delivered to
his residence.
On or about February 27, 2008, complainant returned his identification
card and submitted a note indicating he was leaving the job, which taken
together constituted a resignation. On appeal, complainant generally
argues that agency management made false and misleading statements in
the case.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including 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 v. Forklift Systems, 510 U.S. 17 (1993).
While this decision does not discuss every incident complainant alleged,
we find that he has not proven harassment because he failed to show
that a number the incidents raised to support his claim occurred,
as alleged. For the same reason, we find complainant failed to prove
he was constructively discharged.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 12, 2009
__________________
Date
2
0120090732
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090732