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.