01982372
06-07-2000
Frank M. Klimek, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Frank M. Klimek, Jr. v. United States Postal Service
01982372
June 7, 2000
Frank M. Klimek, Jr., )
Complainant, )
) Appeal No. 01982372
v. ) Agency No. 4-G-770-1185-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination on the
bases of sex (male) , retaliation (prior EEO activity), age (51),
and physical disability (hypertension), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973,<1> as amended,
29 U.S.C. � 791, et seq.<2> Complainant alleges he was discriminated
against when: (1) from December 29 through January 5, 1996, he was denied
light duty, in that he was not given time to complete nixies on Route
6204 and to complete Form 3982; (2) he was denied workers compensation
forms, and (3) management threatened to remove him from his route. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the Commission AFFIRMS the agency final decision (FAD).
During the relevant time, complainant was employed as a Letter Carrier,
E-5, at the agency's Albert Thomas Station, Houston, Texas District
facility. Complainant sought EEO counseling and filed a complaint on
April 10, 1996, which alleged that he was denied light duty by not being
allowed to do nixies or light duty on his own route and put off the clock.
He also alleged that he was denied Office of Workers Compensation (OWCP)
forms and threatened with removal from his route. At the conclusion of
the investigation, complainant requested the issuance of a FAD.
The FAD concluded that complainant failed to establish a prima facie
case on any basis, but that even if he had, the agency had articulated
legitimate, nondiscriminatory reasons for its actions which were not
shown to be pretextual. Neither party makes any comments on appeal.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), and
assuming for the purpose of analysis that complainant is a qualified
individual with a disability, that Commission finds that complainant
either failed to establish a prima facie case, or failed to establish
that the legitimate, nondiscriminatory reasons articulated for the
agency's actions were pretextual.
At the outset, we note that in order to file an EEO complaint, an
employee must be "aggrieved" under EEOC regulations.<3> The Commission
has interpreted this to mean an employee who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Riden v. department of the Treasury, EEOC
Request No. 05970314 (October 2, 1998). We find, under our regulations,
that the complainant failed to state a claim regarding the Form 3982,
since he has not shown how he was harmed by not being given enough time to
complete the Form, which was a change of address form for a carrier case.
With respect to the OWCP Forms, the record shows that since complainant
did not have an on-the-job injury, he was not eligible for OWCP Forms
CA-1 and CA-17, and was given Form CA-2 which was the correct form for
his medical problems. With one exception, the comparison employees cited
by complainant were also denied light duty work from December 29, 1995 to
January 5, 1996, on the basis that none was available. While one female
comparison was given light duty work during this period, this employee
was at the head of the eligibility list for light duty and given work in
accordance with the collective bargaining agreement between the agency
and the union. Complainant did not show that this reason was a pretext
for discrimination.
In regard to complainant's being threatened to be removed from his
route, to the extent that this was a proposed personnel action, it is
subject to dismissal under EEOC Regulation 29 C.F.R. � 1614.107(e).
To the extent complainant is contending that these threats constituted
harassment based upon his membership in protected classes, the Commission
has found that unless the conduct is very severe, a group of isolated
incidents will not be regarded as creating a hostile work environment.
See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996); Banks v. Department of Health and Human Services, EEOC
Request No. 05940481 (February 16, 1995); see also Harris v. Forklift
Systems, Inc., 510 U.S. 17, 22 (1993). A supervisor's remarks on several
occasions unaccompanied by any concrete action are usually not sufficient
to state a claim of harassment. Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996).
Hence, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the
agency's ultimate finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. Since that time, the ADA
regulations set out at 29 C.F.R. Part 1630 apply to complaints of
disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3Pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at 29
C.F.R. �� 1614.105, 106).