Angel M. Lebron, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Midwest Area), Agency.

Equal Employment Opportunity CommissionAug 4, 2000
01984114 (E.E.O.C. Aug. 4, 2000)

01984114

08-04-2000

Angel M. Lebron, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Midwest Area), Agency.


Angel M. Lebron, Jr. v. United States Postal Service

01984114

August 4, 2000

.

Angel M. Lebron, Jr.,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Midwest Area),

Agency.

Appeal No. 01984114

Agency No. 1E-853-0013-97

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.;<1> and the Age Discrimination in Employment

Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal

is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. � 1614.405). Complainant alleged that he was

discriminated against on the bases of national origin (Hispanic), sex

(male) and age (date of birth: March 17, 1955) in the course of various

management actions. For the following reasons, the Commission affirms

the FAD.

The record reveals that during the relevant time, complainant was employed

as a PS-5 Maintenance Support Clerk, at the agency's Phoenix, Arizona

facility. Complainant claims that he was discriminated against when:

(1) he was not offered the detail as Maintenance Support Clerk, and was

not awarded the position on October 29, 1996; (2) on October 1, 1996,

he was charged with Family and Medical Leave Act leave instead of Office

of Workers Compensation Programs leave because his supervisor altered

and falsified his PS-3971 forms; (3) management allegedly conspired with

the Union to avoid giving him weekends off; (4) management failed to

abide by a Memorandum of Understanding (MOU), by not filling a residual

position; (5) he was required to renew his in-house license when others

were not; (6) he was denied the opportunity to bid on a Maintenance

Support position; (7) he was harassed after informing a Mail Processing

supervisor of a breakdown of a CSBCS (a piece of equipment) in another

office; (8) he was required to have a government drivers license; (9) he

was denied a copy of the Employee Labor Relations Manual (ELM); and (10)

he was told all future sick leave requests for scheduled appointments for

an on-the-job injury would be disapproved when requested. Believing he

was a victim of discrimination, complainant sought EEO counseling and,

subsequently, filed a complaint on March 19, 1997. At the conclusion

of the investigation, complainant requested that the agency issue a FAD.

The FAD concluded that complainant failed to establish a prima facie case

of national origin, sex or age discrimination with respect to all issues

because he presented no evidence that similarly situated individuals

not in his protected classes were treated differently under similar

circumstances. Further, the FAD found that the agency had provided

legitimate, nondiscriminatory reasons for its actions. With respect

to specific incident (SI) (1), the FAD concluded that complainant was

not awarded the position because he did not submit a properly completed

application, nor did he take the test for the level 6 position. For SI

(2), it was found that complainant's leave requests were processed as

instructed by the Injury Compensation Office. With respect to SI (3),

the FAD found that the complainant had voluntarily chose to bid on a

Maintenance Support Clerk position with Sunday/Monday off days instead of

the weekend. For SI (4), the FAD indicated that all maintenance positions

were filled in accordance with the collective bargaining agreement and the

MOU. For SI (5), the FAD found that it was standard procedure to require

employees who drive to renew their license. With respect to SI (6), again

complainant did not receive the position because he did not submit a

properly completed application or take the level 6 test. For SI (7), the

FAD found that the record was absent of any evidence demonstrating that

complainant was harassed after he informed a supervisor of a breakdown

of a CSBCS in another office. For SI (8), the FAD found that it was

a requirement of complainant's job to have a drivers license. For SI

(9), the FAD concluded that complainant was advised to seek a copy of

the ELM from the Personnel Office. With respect to SI (10), the FAD

found that the record was absent of any evidence to support the claim

that complainant's future sick leave would not be approved. On appeal,

complainant restates his arguments but indicates that specific incidents

nos. (7), (8), (9) and (10) are part of a harassment claim. The agency

requests that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d

1003 (1st Cir. 1979), the Commission agrees with the agency that

complainant failed to establish a prima facie case of national origin,

sex or age discrimination because he failed to demonstrate that other

employees similarly situated, not of his protected groups were treated

differently. Further, assuming that complainant could establish a prima

facie case of discrimination on the bases alleged, we find that the

agency provided legitimate nondiscriminatory reasons for its actions which

complainant failed to establish were a pretext for discrimination.

With regard to complainant's claim that all or some of these actions

constituted harassment, we note that 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

severe or pervasive. Jackson v. United States Postal Service, EEOC

Appeal No. 01972555 (April 15, 1999). In determining whether a working

environment is hostile, factors to consider are the frequency of the

alleged discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and if it unreasonably interferes with an

employee's work performance. See Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994),

Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.

After a careful review of the record, we find that complainant failed to

demonstrate that he was subjected to harassment. We find the incidents

raised by complainant involve managerial decisions that were not severe

or pervasive enough to create a hostile work environment. See Harris,

supra.

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 FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

August 4, 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 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.