01970976
08-26-1999
Stanley F. Kendrick, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stanley F. Kendrick v. United States Postal Service
01970976
August 26, 1999
Stanley F. Kendrick, )
Appellant, )
)
v. )
) Appeal No. 01970976
William J. Henderson, ) Agency No. 4H-310-1118-96
Postmaster General, )
United States Postal Service, )
Agency. )
_______________________________)
DECISION
INTRODUCTION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the agency's final decision (FAD)
concerning his allegation that the agency violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue presented in this appeal is whether appellant established that
he was discriminated against on the bases of his race (Negro) and color
(Black) when he was harassed by his supervisor on or about April 4,
1995.
BACKGROUND
On June 30, 1995, appellant filed a formal complaint against the agency
alleging that his supervisor stared at him, handled the processing
of his PS Form 3996 differently than other employees, and denied his
request to meet with the Station Manager. Following an investigation
of the above issues, appellant was provided a copy of the investigative
file and notified of his right to request a hearing before an EEOC
Administrative Judge. Since appellant did not request a hearing,
the agency, on October 9, 1996, issued a final decision. The agency,
analyzing appellant's complaint as a disparate treatment claim, found
that he had not been discriminated against. This appeal followed.
Appellant was employed as a City Letter Carrier at the Summerall
Station in Aiken, South Carolina. In his affidavit and formal complaint,
appellant maintained that his supervisor, over a two day period, stared at
him.<1> According to appellant, no other employee, to his knowledge, was
stared at by his supervisor. With regard to the manner that his PS 3996
Form<2> was handled by his supervisor, appellant testified that on the
morning of April 4, 1995, his supervisor spoke to the Caucasian carriers,
who had submitted PS Forms 3996, and quickly reached determinations on
their requests. In his case, however, appellant maintained that his
supervisor, without having talked to him and after waiting 25 minutes,
shouted from his desk that appellant could leave the last 45 minutes of
his route for another carrier. Finally, appellant indicated that since
his supervisor "[h]ad shown discrimination to [him]," he asked to see
the Station Manager, but was told that the Station Manager was busy.
Subsequently, appellant stated that he observed his supervisor talking
to the Station Manager.
Appellant's supervisor, A-1, testified that "[w]hile all employees may be
supervised at all times, it is not my practice to 'stare' at [appellant]
or any other employee." He indicated that appellant's duty area is
across from his desk and that he has noticed, on several occasions,
appellant glancing at him. A-1 stated that he regarded it as "[s]imple
eye contact due to the circumstances of our locations." A-1 denied
harassing appellant with regard to the handling of his PS Form 3996.
According to A-1, appellant submitted the form requesting .75 hours of
assistance and that was provided to him. Finally, A-1 testified that
"to the best of his knowledge," he has never denied any employee a
meeting with the Station Manager.
ANALYSIS AND FINDINGS
Appellant, throughout the investigation of his complaint, consistently
asserted a claim of harassment, not disparate treatment. Therefore,
we find that the agency erred by analyzing appellant's complaint as a
disparate treatment claim. Based on our findings below, however, we
find that the agency's error was harmless. Harassment of an employee
that would not occur but for the employee's race, color, sex, national
origin, age, disability or religion is unlawful if it is sufficiently
patterned or pervasive. Garretson v. Department of Veterans Affairs,
EEOC Appeal No. 01945351 (April 4, 1996); McKinney v. Dole, 765 F.2d
1129, 1138-39 (D.C. Cir. 1985). The Commission's Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors,
EEOC Notice No. 915.002 (June 18, 1999) (Guidance) identifies two types
of such harassment: (1) harassment that results in a tangible employment
action; and (2) harassment that creates a hostile work environment.
Since neither appellant nor the record indicates that the alleged
harassment in this case resulted in a tangible employment action being
taken<3>, we will analyze this matter as an allegation of harassment
that creates a hostile work environment.
In order for harassment to be considered as conduct in violation of the
regulations that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes
that unless the conduct is very severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Here, appellant alleged that he was harassed because of his race and
color with regard to three isolated incidents which occurred, at best,
over a two-day period of time. Even accepting appellant's allegations as
true, the incidents were neither sufficiently patterned nor pervasive to
constitute harassment based on race or color. Therefore, we find that
appellant has not proven, by a preponderance of the evidence, that the
agency subjected him to discriminatory harassment.
Accordingly, we AFFIRM the agency's determination that appellant did
not establish that he was a victim of discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
August 26, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1In his formal complaint, appellant indicated that his supervisor
stared at him for 15 minutes on April 3, 1995, and 2 hours and 40
minutes on April 4, 1995.
2According to the record, a PS Form 3996 is a document used by supervisors
and carriers. If a carrier determines that his workload cannot be
completed within the regular eight (8) hour time frame, he must submit
a PS Form 3996 requesting assistance. Upon receipt, the supervisor will
review the form and take whatever action is deemed appropriate.
3The Commission defines a tangible employment action as one that results
in a significant change in an employee's employment status. Guidance at
page 9.