01984352
02-04-2000
Gulam M. Dean, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest areas), Agency.
Gulam M. Dean v. United States Postal Service
01984352
February 4, 2000
Gulam M. Dean, )
Complainant, )
)
v. ) Appeal No. 01984352
)
William J. Henderson, ) Agency No. 4H-3350-154-97
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest areas), )
Agency. )
____________________________________)
DECISION
Gulam M. Dean (complainant) filed an appeal with this Commission from a
final decision of the United States Postal Service (agency) concerning
his 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.<1> Complainant's claim of discrimination is
based upon his race (Indian), color (brown), religion (Muslim), and
national origin (India), when he was allegedly subjected to a hostile
work environment at the agency's St. Petersburg, Florida Open Air Station
(Open Air Station) from December 1996 through March 1997. The appeal
is accepted in accordance with EEOC Order No. 960.001.
BACKGROUND
Complainant first contacted an EEO counselor on March 21, 1997, and
subsequently filed a formal EEO complaint on June 18, 1997. Complainant
alleged with the EEO counselor, and in his formal complaint, that he was
harassed by his co-workers: (1) from mid-1992 through November, 1996
at the agency's St. Petersburg, Florida Crossroads Station (Crossroads
Station); and (2) from December 1996 through March 1997 at the Open
Air Station.
On September 17, 1997, the agency issued a final decision (FAD) which
dismissed, as untimely, complainant's allegation of harassment during
the years 1992 through November, 1996. Complainant thereafter filed a
timely appeal. The Commission vacated and remanded the FAD and ordered
the agency to: (1) issue a new FAD stating why the dismissed allegations
do not constitute a continuing violation; or (2) issue a notice
that the agency will continue processing the entire claim. See Dean
v. USPS, EEOC Appeal No. 01977045 (July 17, 1998). On August 21, 1998,
the agency issued a second FAD dismissing again, as untimely, the portion
of appellant's complaint that alleged harassment from 1992 through 1996.
This time, in accordance with the Commission's July 17, 1998 decision,
the FAD explained why complainant's allegations of harassment from 1992
through 1996 did not fall within the continuing violation exception.
Complainant did not appeal this decision.
Following an investigation on the accepted portion of complainant's
complaint, the agency notified complainant of his right to request
a hearing. Complainant failed to request a hearing and, accordingly, on
April 27, 1998, the agency issued a final decision of no discrimination.
It is this agency decision which complainant now appeals.
During the relevant time period, complainant was employed as a
Transitional Employee Letter Carrier in the St. Petersburg, Florida,
Post Office. Complainant affirmed that from mid-1992 through November
1996, he worked at the Crossroads Station and faced hostility from his
co-workers. Without specifying names or dates of particular incidents of
harassment, complainant affirmed that his co-workers made the following
statements: (1) "go back to India;" (2) "you should open a 7-11 store;"
(3) "transitional employees are taking our overtime;" and (4) all
transitional employees should be fired." Complainant also affirmed that
he was transferred to the Open Air Station in November 1996 and continued
to be similarly harassed by his co-workers at that facility. In addition,
complainant affirmed, without specifics, that his supervisors should
have been aware of the harassment since he believed it was very obvious.
Lastly, complainant alleged that in October 1995 he received a letter
from the president of the union which accused complainant of calling
union members "slugs." Complainant also alleged that in March 1997,
he was being pressured by the union to become a member.<2>
In response to complainant's allegations, the manager of the Crossroads
Stations (RMO1) affirmed that complainant brought to his attention
one instance where he had a verbal altercation with a co-worker (C1).
RMO1 was told that C1 called complainant "Ghandi." RMO1 affirmed that
he immediately instructed C1 not to antagonize complainant. RMO1 further
affirmed that he assumed that the name-calling stopped since complainant
never complained again about C1 or any other co-worker.
Two other managers were interviewed and provided affidavits that they
had no information regarding any alleged harassment against complainant.
In addition, these managers affirmed that complainant never informed
them of any alleged harassment.
FINAL AGENCY DECISION
The agency found that complainant failed to establish a prima facie case
of discrimination based on race, color, national origin, or religion
because he failed to show how individuals outside his protected groups
received more favorable treatment relative to the work environment.
In addition, the agency noted that complainant was specifically asked
by the EEO investigator to provide particular instances of the alleged
harassment (ie., what was said, who said it, and what management
officials were notified of the harassment), yet he failed to provide
such information.
The agency also noted that RMO1 explained that on one occasion complainant
complained about C1. RMO1 took immediate corrective action which, to his
knowledge, was effective in resolving the matter. RMO1 further affirmed
that complainant never again complained about C1 or any other co-workers.
In addition, the Manager at the South Annex Station (RMO2) also affirmed
that complainant never complained about harassment during the time that
he worked at that location.
Lastly, the agency also noted that complainant failed to present any
evidence of pretext.
ANALYSIS
While we find that the agency improperly analyzed this matter
as a disparate treatment claim, rather than a harassment claim,
we, nevertheless, agree with the agency's ultimate finding of no
discrimination. Specifically, we find that the complainant failed to meet
his burden of presenting sufficient evidence that he was subjected to
severe, pervasive, hostile and unwelcome conduct. As the agency noted,
complainant was unable to identify a single co-worker who allegedly
harassed him. In addition, complainant could not describe a single
incident of alleged harassment. While complainant made vague and general
allegations of harassment, the evidence of record shows that complainant
complained to his supervisor on one occasion and his supervisor took
prompt remedial action. Accordingly, we find that the evidence is
insufficient to support a finding of discriminatory harassment.
On appeal, complainant generally restates arguments previously made
and discussed herein above. Complainant also argues that his union
complaint was improperly excluded from his EEO complaint. However, since
complainant never alleged that the poor treatment he received from union
officials was based on discriminatory motives (e.g. race, national origin,
religion, color), but rather, inter alia, his transitional employee
status, such allegation is not within the Commission's jurisdiction.
Lastly, complainant argues that the EEO investigator should have
interviewed his co-workers. While we find the record minimally
developed, we, nevertheless, find the record appropriate given the
little information provided by the complainant. As appellant offered
no additional persuasive evidence to support his claims on appeal, we
discern no basis to reverse the agency's finding of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the final agency decision.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
2/4/00
_______________ _________________________________
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on __________________.
By: _________________________________
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 the EEO counselor referred complainant's
union-related complaints to the NLRB, having found such complaints
outside the jurisdiction of the EEO process.