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