01A41456_r
11-29-2004
Ronald E. Garczynski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald E. Garczynski v. United States Postal Service
01A41456
November 29, 2004
.
Ronald E. Garczynski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41456
Agency No. 4B-030-0027-02
Hearing No. 160-2003-08497X
DECISION
Complainant filed this appeal from the November 19, 2003 agency decision
implementing the November 6, 2003 decision of the EEOC Administrative
Judge (AJ) finding no discrimination.
In his March 22, 2002 complaint, complainant alleged that he was subjected
to harassment on the basis of reprisal when: (1) in late May/early
June 2001 and as recently as February 5, 2002, he was subjected to
inappropriate touching and remarks by the Postmaster; and (2) he was
harassed by co-workers on July 5, 2001, and October 24 and 30, 2001.
The complaint was amended on May 17, 2002, and November 18, 2002,
respectively, to include the following: (3) complainant continued to be
subjected to offensive and inappropriate comments from April 16 through
May 11, 2002, and continuing; and (4) on November 13, 2002, the Postmaster
invited complainant into the ladies room to view the soap dispenser.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ also incorporated the agency's motion
for summary judgment in her decision. The AJ specifically concluded
that in viewing the facts in a light most favorable to complainant and
considering all complainant's claims to be true, the incidents complained
of, either individually or collectively, did not rise to the level of
a hostile work environment.
Complainant's affidavits are contained in the record. The affidavits
reveal that complainant has engaged in prior EEO activity. Complainant
stated in his affidavits that in September 2000, he asked the Postmaster
not to make any physical contact with him. Complainant stated that in
late May/early June 2001, he and the Postmaster were having a conversation
when she placed her hand on his forearm. After touching complainant,
she withdrew her hand, apologized and noted that she was a "touchy feely"
kind of person. The complainant stated that on July 5, 2001, a contract
worker intentionally rammed him with a hamper to get complainant to move
and that six months later, the contract worker's girlfriend jabbed him
in the back while he was working. Complainant further stated that to
his knowledge no action was taken about the contract worker's alleged
behavior. He stated that he believed the agency's lack of action was
due in part to the Postmaster's vendetta against him for having filed
an EEO complaint.
Complainant also stated in his affidavits that on October 24, 2001,
the Window Clerk initiated a conversation with him about the agency's
lack of response to the anthrax scare and the innocent victims in the
World Trade Center (WTC). Complainant stated that when he compared
the WTC incident to innocent victims in Japan when the atomic bomb was
dropped, the Window Clerk became angry and began pointing his finger in
complainant's face, yelling at him. He stated that he felt threatened
and he reported the incident to the Postmaster but nothing was done.
Complainant also stated that on October 30, 2001, the Window Clerk
demanded that complainant place certified letters in a the filing
cabinet and when the Window Clerk began to become agitated, complainant
moved away. Complainant stated that the Window Clerk followed him and
began shouting at him and shaking his finger violently in his face.
Complainant also stated that he saw the Window Clerk talking to the
Postmaster and thereafter, the Postmaster ordered complainant to arrange
the certified letters in the way that the Window Clerk had requested.
Complainant's affidavits reflect that on November 13, 2002, the Postmaster
and a Clerk were having a conversation about the new soap dispenser in
the women's restroom and the Clerk asked complainant if one should be
ordered for the male restroom. Complainant stated that he responded that
the men's restroom had a dispenser and that it was not being utilized.
Complainant further stated that the Postmaster continued to play up and
brag about the new dispenser and asked complainant whether he would like
to go into the women's restroom to view the new dispenser. Complainant
stated that he did not go into the women's restroom. He stated that he
was shocked by the Postmaster's invitation which he felt was inappropriate
because he was not the equipment or supply clerk or the custodian and
had no legitimate reason for being in the women's restroom.
Complainant's affidavits also describe incidents that allegedly occurred
on March 9, 2002 (Supervisor told complainant that the Postmaster had
been telling workers to be careful around complainant because he was an
ex-police officer and had guns; he also learned that other workers knew of
the touching incidents, although the complaints were to be confidential);
March 11, 2002 (complainant was told that Person A would be meeting
with him and when Person A came on March 14, it was for a meeting that
complainant had not requested); April 17, 2002 (complainant heard the
Postmaster discussing topless women at beaches in Sweden with other female
employees while complainant was in the break area on break); May 1, 2002
(contract worker's girlfriend said to complainant as he was pushing his
hamper that she was glad that he "got it in the right hole"); May 9, 2002
(when complainant told the Postmaster that he had a hard time finding
an address, she remarked that he probably needed glasses); May 10, 2002
(complainant asked the Postmaster to remain two feet away from him and
later the Supervisor told him that the Postmaster was ranting, saying
"[C]an you believe that shit"); May 11, 2002 (complainant overheard the
Supervisor making allegedly "sexually explicit" comments on a telephone
that was 15 feet from complainant's desk); May 23, 2002 (the contract
worker's girlfriend commented that she was "not going near that thing"
which complainant understood to apply to him); June 16, 2002 (Postmaster
approached him and told him that she has seen some laminate flooring
and would give him a sample to consider for the house complainant was
building); and July 25, 2002 (a comment was made about complainant's
sorting and the following day, the Postmaster told complainant that she
did not want him to sort in that manner again).
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. See 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 the 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 the summary judgment 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 the 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 the 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.
Whether the harassment is sufficiently severe to trigger a violation
of the law must be determined by looking at all of the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee's work
performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993);
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994) at pp 3, 6. The Supreme Court has stated that
"[c]onduct that is not severe or pervasive enough to create an objectively
hostile work environment� an environment that a reasonable person would
find hostile or abusive � is beyond Title VII's purview." Harris, 510
U.S. at 22. Accordingly, harassment is actionable only if the harassment
to which the complainant has been subjected to was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence in a light most favorable to
complainant, we note that complainant failed to show that the agency's
actions were motivated by discriminatory animus.
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
November 29, 2004
__________________
Date