01A42865_r
07-26-2004
Jack Majewski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jack Majewski v. United States Postal Service
01A42865
July 26, 2004
.
Jack Majewski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42865
Agency No. 4B-145-0016-02
Hearing No. 160-A3-8323X
DECISION
Complainant appeals to the Commission from the agency's March 2, 2004
decision finding no discrimination. Complainant alleges discrimination
when he was subjected to ongoing harassment on the bases of color
(white), age (over 40), and disability (fused left wrist), when:
(1) Since August 19, 2001,<1> he has been subjected to intimidation,
degrading remarks and bullying as an injured worker; (2) In December 2002,
his manager stood approximately twenty feet behind complainant and stared;
(3) His manager asked complainant's supervisor for complainant's quota
and whether he was keeping up; (4) On March 18, 2002, his manager went
to complainant's work area, observed his work, said, �Is that all you
did?� and laughed; (5) On April 22, 2002, complainant was informed by
a union representative that his manager intended to give him a direct
order to submit medical documentation to account for his absence, and
if he failed to do so, he would be subject to discipline; (6) On May
12, 2002, while complainant was on a break, his manager looked at the
clock, then at complainant, going back and forth with his eyes and head
until finally staring at complainant; (7) On May 16, 2002, his manager
stepped out from behind a pie cart and began staring at him; and (8)
On two separate occasions, his manager glared at complainant and smirked
in an intimidating matter.
On February 18, 2004, an Administrative Judge (AJ), without a hearing,
issued a decision finding that there was no genuine issue of material
fact in dispute and concluded that complainant had not been discriminated
against by the agency. Specifically, the AJ found that complainant failed
to establish a prima facie case of discrimination on the bases color,
age, or disability. The agency, on March 2, 2004, issued a decision
adopting the AJ's decision. Complainant now appeals from that decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to this case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at summary judgement stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of a non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is �material�
if it has potential to affect the outcome of the case. If a case can
only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
We find that complainant has not presented a prima facie case of
discrimination on the bases of color, age or disability. To establish a
prima facie case of hostile work environment, a complainant must show
that: (1) he is a member of a statutorily protected class; (2) he was
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on the statutorily protected class; and (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating hostile work environment. Humphrey v. United
States Postal Service, EEOC Appeal No. 01965238, (October 16, 1998). The
AJ found, and we agree, that the agency's conduct, even when viewed
in a light most favorable to complainant, was not sufficient enough to
constitute behavior that is so severe or pervasive so as to give rise
to an intimidating, hostile work environment. Furthermore, the AJ,
and we agree, that complainant failed to show that any of the actions
were discriminatorily motivated. Therefore, we affirm the agency's
final action adopting the AJ's finding of no discrimination.<2>
The agency's decision finding no discrimination is AFFIRMED.
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
July 26, 2004
__________________
Date
1Although the AJ's decision lists the date
as August 19, 2002, the record indicates that the event occurred on
August 19, 2001.
2Because of our disposition, we do not address whether complainant was
an individual with a disability.