Daniel P. Browne, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 4, 2002
01A22388_r (E.E.O.C. Sep. 4, 2002)

01A22388_r

09-04-2002

Daniel P. Browne, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Daniel P. Browne v. United States Postal Service

01A22388

September 4, 2002

.

Daniel P. Browne,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A22388

Agency No. 4E-890-0033-00

DECISION

Complainant timely initiated an appeal from the final agency decision

concerning his equal employment opportunity (EEO) 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.

The record reveals that complainant, a custodian at the agency's Post

Office in South Lake Tahoe, California, filed a formal complaint on

March 17, 2000, claiming that the agency discriminated against him on

the bases of sex and in reprisal for prior EEO activity. The agency

framed the claims as follows:

(1) on December 17, 1999, complainant was subjected to an investigative

interview;

(2) on January 8, 2000, he was issued a 7 calendar day suspension;

(3) on January 20, 2000, he was told by deputy sheriffs that he was

implicated in a death threat phone message and vandalism to a co-worker's

mail box; and

(4) on February 12, 2000, he was subjected to a hostile work environment

when the co-worker referenced in Issue #3 clocked in even though he was

the only employee scheduled in the Main Office at 0500.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). Thereafter, however, complainant withdrew

the request and asked that the agency issue a final decision.

On February 19, 2002, the agency issued a decision finding no

discrimination. The agency determined that complainant failed to

establish a prima facie case of discrimination based on either sex

or reprisal. With regard to the basis of sex, the agency found that

the record did not contain any information regarding similarly situated

employees outside of complainant's protected class that were treated

more favorably. Regarding the reprisal claim, the agency concluded that

complainant failed to establish the necessary causal connection between

the agency's actions and his prior EEO activity. Moreover, with respect

to claims (1) and (2), the agency noted that complainant's supervisor

was unaware of his prior EEO activity.

Assuming arguendo that complainant had established a prima facie case, the

agency found that legitimate, non-discriminatory reasons were articulated

by the responsible management officials. Regarding claims (1) and (2),

the agency noted that the record established that complainant and another

employee deviated from their assigned duties and used a postal vehicle

to drive across town by another co-worker's residence. According to the

agency, complainant does not challenge their assertion. Complainant's

supervisor stated that she gave complainant the investigative interview

(claim (1)) to hear his explanation of the incident. Because complainant

and the other employee provided differing reasons that seemed unworthy

of belief, the supervisor issued them both 7-day suspensions (claim (2)).

Regarding claim (3), the Postmaster testified that deputy sheriffs came

to the facility because a complaint had been filed by the husband of an

employee. The complaining parties had apparently provided several names,

including complainant's name, to the deputy sheriffs. According to the

agency, the Postmaster explained to the deputy sheriffs that complainant

had driven by the residence, and then left the room while the sheriffs

spoke to complainant. Regarding claim (4), the Postmaster asserted that a

co-worker had previously submitted a change of schedule that was approved.

Further, she did not remember complainant ever saying anything to her

about the situation.

While the agency found that the agency articulated non-discriminatory

reasons for its actions, it also determined that complainant failed

to establish that the agency's reasons were, more likely than not,

a pretext to mask unlawful discrimination.

Finally, the agency addressed complainant's assertion that he was

subjected to a hostile work environment when a co-worker clocked in for

duty at 0500 on February 12, 2000, and complainant was the only other

employee in the office (claim 4). According to the agency, complainant

failed to meet his burden of proof to establish an actionable claim

of harassment. Even when claim (4) was considered together with the

remainder of the complaint, the agency reasoned that complainant failed

to establish a pattern of harassment that was sufficiently severe or

pervasive to alter the conditions of his employment.

Complainant makes no new persuasive contentions on appeal.

After a review of the record in its entirety, including arguments and

evidence not specifically addressed in this decision, 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 (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 4, 2002

__________________

Date