01a00504
04-20-2000
Gaither L. Brown, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gaither L. Brown, Jr., )
Complainant, )
) Appeal No. 01A00504
v. ) Agency No. 4F-907-0082-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination, 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, as amended, 29 U.S.C. � 791, et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether the agency correctly determined that
complainant failed to demonstrate by preponderant evidence that he was
subjected to harassment based on his race, age, sex, physical disability,
and prior EEO activity.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier, at the agency's Torrance Post Office facility in
Torrance, California. Complainant alleged that on December 3, 1998,
during a disagreement, his Supervisor became very frustrated with
complainant and used a crude expression to demonstrate her frustration.
Complainant felt that the expression was offensive. Believing he was
a victim of discrimination on the bases of race (African American),
sex (Male), reprisal (prior EEO activity),<2> age (52), and physical
disability (Flat Feet), complainant sought EEO counseling on January
11, 1999. Subsequently, complainant filed a complaint on March 4, 1999.
At the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
The FAD concluded that complainant failed to establish that the agency
discriminated against him.
Complainant appeals this decision. The agency requests that we affirm
its FAD.
ANALYSIS AND FINDINGS
It is well-settled that harassment based on an individual's race, sex,
age, physical disability, and prior EEO activity is actionable. See
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to
establish a claim of harassment under those bases, the complainant
must show that: (1) he belongs to the statutorily protected classes and
engaged in prior EEO activity; (2) he was subjected to unwelcome conduct
related to his membership in those classes and his prior EEO activity;
(3) the harassment complained of was based on race, sex, age, physical
disability, and his prior EEO activity; (4) the harassment had the purpose
or effect of unreasonably interfering with his work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that parties do not deny the incident
nor what was said during the incident. However, the Commission finds
that complainant has failed to demonstrate that this single incident would
rise to the level of creating an intimidating, hostile, or offensive work
environment. Therefore, the Commission finds that complainant has failed
to demonstrate by preponderant evidence that he was subject to sexual
harassment or harassment based on his race, age, physical disability,
prior EEO activity.
CONCLUSION
Accordingly, after a careful review of the record, we affirm the
FAD.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:
April 20, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date 1On 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.
2The record indicates that complainant filed a prior EEO complaint,
Case No. 4F-907-0021-99.