01a03432
11-17-2000
Michael P. Garthwaite, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael P. Garthwaite v. United States Postal Service
01A03432
November 17, 2000
.
Michael P. Garthwaite,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03432
Agency No. 4C-442-0061-97
Hearing No. 220-99-5159X
DECISION
Complainant timely initiated an appeal from the agency's final action
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.; and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges he was discriminated against and subjected
to harassment based on his sex (male) and age (47) when from November
1996 through December 1996 after he and three other carriers were given
one hour �hand offs�<2> of their routes after a special inspection of
the office in 1995, the following occurred:
(1) on November 8, 1996, complainant's supervisor (S1) informed
complainant that if he was a professional carrier, his mail could be
prepared quicker and he could leave the office a half hour earlier;
(2) on November 2, 1996, S1 stared at complainant from behind and
again talked about him not being a professional carrier;
(3) on December 3, 1996, complainant's co-workers teased complainant
and informed him that S1 constantly stared at him when he walked by;
on December 6, 1996, S1 gave complainant a pre-disciplinary discussion
falsely accusing him of intentionally delaying dated mail;
on December 7, 1996, S1 again ordered complainant out of the office
prior to his scheduled departure time and again watched him;
on December 13, 1996, S1 performed a special mail count on complainant's
mail;
on December 14, 1996, as a result of the special mail count he performed,
S1 gave complainant an official discussion concerning his working speed;
and
on December 16, 1996, after complainant reported sick due to stress,
S1 informed him that he had to have a medical excuse to return to work.
For the following reasons, the Commission AFFIRM the agency's final
action.
The record reveals that complainant, a Letter Carrier at the agency's
Poland, Ohio facility, filed a formal EEO complaint with the agency on
March 5, 1997, alleging that the agency had discriminated against him
as referenced above. On July 2, 1997, the agency issued a final agency
decision (FAD) accepting issue (8) for investigation and dismissing issues
(1) through (7) for failure to state a claim. Complainant appealed and
the Commission found that the complainant stated a cognizable claim and
remanded the entire complaint for an investigation. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing at which seven witnesses and complainant testified,
the AJ issued a decision finding no discrimination.
The AJ concluded that a conflict existed between complainant and S1
over the one hour hand off. S1 felt that the complainant could be
more efficient when casing mail. S1 reminded complainant that he was
a professional, deemed a pre-disciplinary discussion to be an official
discussion after listening to the complainant's side of the story,
conducted a mail count, required documentation for an absence that
S1 felt was questionable, and issued a letter of warning when his
instructions were not followed. The AJ found, however, that none of
these incidents, when considering the totality of the circumstances,
evidenced harassment, nor disparate treatment based on age or sex. The AJ
further found the evidence presented did not reveal the existence of a
working environment so severe and pervasive as to trigger a violation of
Title VII. The AJ found that the incidents complained of evidenced a
difference of opinion as to a one hour hand off, bargaining agreement
obligations, and agency regulations. The record indicated that S1
observed complainant because it was his job to do so, because he
questioned the necessity of a daily one hour hand off, and because S1
felt that the complainant could case mail more efficiently. The AJ found
that the comment �being a professional� was not derogatory on its face.
S1 elected not to discipline the complainant regarding delay of dated
mail after listening to complainant's explanation. The mail count did
not result in any adverse action. In addition, the AJ noted that the
record showed that agency regulation provided that management could
require documentation for a one day absence and could issue discipline
when instructions were not followed by an employee. The AJ concluded
that the record was devoid of evidence indicating that the complainant's
age and/or sex were factors in any of the supervision's actions. The
agency's final action implemented the AJ's decision.
On appeal, complainant contends that the AJ erred in finding no
discrimination. Complainant's representative attached sixty pages of
the hearing transcript in which seven witnesses testified that they
felt complainant was discriminated against. However, the majority of
the testimony of the witnesses focused on the fact that because S1 felt
complainant could be more efficient when casing mail and that S1 stared
at the complainant in a manner that was evidently noticed by most of his
coworkers. Moreover, although all of the complainant's witnesses responded
in the affirmative when asked whether they believed complainant's civil
or contractual rights were violated, a review of the hearing transcript
clearly revealed that the witnesses were unclear and/or confusing
the difference between the two rights. Except for the unsubstantiated
conclusory statement made by the complainant's witnesses to the contrary,
the testimony of record did not indicate that the complainant's age or
sex were factors in S1's actions.
Pursuant to 29 C.F.R. � 1614.405(a)), all post-hearing factual
findings by an Administrative Judge will be upheld if supported by
substantial evidence in the record. Substantial evidence is defined
as �such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding that discriminatory intent did not exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence any of the agency's actions were motivated
by discriminatory animus toward complainant's age or sex. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 17, 2000
__________________
Date
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 �A hand off is [if] the route is found to be out of adjustment [,
a readjustment] is made [by allowing for] a one hour hand off of [mail
which was not finished being cased and delivered] which [a carrier was]
supposed to receive daily [sic].� (Hearing Transcript, p. 22).