0120092608
11-17-2009
Danilo T. Coronel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Danilo T. Coronel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092608
Agency No. 1G-753-0074-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 4, 2009 final decision concerning an equal
employment opportunity (EEO) complaint claiming 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.
On July 14, 2008, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against him
in reprisal for prior protected activity when:
1. on April 1, 2008, his request for leave was denied;
2. on June 11 and 18, he was reprimanded;
3. on July 5, 2008, his request for leave was denied;
On August 27, 2008, the agency issued a partial dismissal decision.
The agency accepted claim 3 for investigation, but dismissed claim 1 on
the grounds of mootness, pursuant to 29 C.F.R. � 1614.107(a)(5), and claim
2 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
Thereafter, complainant requested that his formal complaint be amended
to include the following two claims:
4. since on or about July 2008, he has been subjected to hostile work
environment harassment, including verbal abuse from the Supervisor,
improper assignment of duties, improper timekeeping, and delay or denial
of leave request; and
5. on December 1, 2008, he submitted a leave request for December 27
and 28, 2008, and was told to resubmit because he submitted the request
too early. Management also delayed returning his PS Form 3971 and told
him to sign the daily annual book regarding his request. 1
On February 12, 2009, the agency issued a document titled "(Revised
with Corrected Address) Acknowledgment and Dismissal of Amendment."
Therein, the agency dismissed claim 5 for stating the same claim as
that is pending before or already decided by the agency, pursuant to 29
C.F.R. � 1614.107(a)(1).
At the conclusion of the investigation concerning accepted claims
3 and 4, complainant was provided with a copy of the report of the
investigation and notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt
of the correspondence. Complainant did not respond. On May 4, 2009,
the agency issued the instant final decision.
In its May 4, 2009 final decision, the agency found no discrimination
concerning claims 3 and 4. The agency initially found that complainant
did not establish a prima facie case of reprisal discrimination,
essentially concluding that none of the management actions complained
of rose to the level of adverse treatment even under the more liberal
standard for retaliation cases. The agency nonetheless went on to
find that management articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to show were a pretext for
discrimination.
Regarding the harassment claim, the agency found that the evidence in the
record did not establish that complainant was subjected to harassment
based on retaliation. Specifically, the agency found that the alleged
harassment was insufficiently severe or pervasive so as to create a
hostile work environment.
Regarding claim 3, complainant's direct supervisor (S1) stated that
complainant's leave request for July 5, 2008 was disapproved due to the
maximum number of employees already scheduled to be off. Specifically,
S1 stated that complainant "was needed as scheduled as the minimum
number of employees were needed were scheduled. For Saturday, July 5,
2008, the maximum number of employees had already been granted leave.
The minimum number of employees needed on a Saturday (other than a
Holiday-Saturday) is a total of eight employees." S1 stated that during
the relevant time, there were eight employees, including complainant,
scheduled to work July 5, 2008.
S1 further stated that on July 3, 2008, she received an e-mail stating
that the Retail Units were closing on Saturday and "that there would be
no deposits on Saturday, therefore, additional employees in the Registry
Room could be scheduled off. Since [complainant] had requested to
be off, I immediately called him to see if he still wanted to be off.
The two telephone numbers I had on file, one was disconnected and the
other, I left a message. He never called back. I also had an APWU
Steward [named steward] and a co-worker [named employee] to try to
contact him. [Named employee] submitted a PS Form 3971 and she was
granted leave." S1 stated that she relied on the "Local Memorandum of
Understanding Article 30 - Section B, Items #9 and 12 (See Exib.#7)
and the expected work load volume" in making her determination to
initially deny complainant's leave request. Furthermore, S1 stated
that complainant's prior protected activity was not a factor in her
determination to disapprove his leave request.
Regarding claim 4, S1 denied subjecting complainant to a hostile work
environment. S1 stated "I can only continue to be fair to all the
employees and follow the rules, regulations and guidelines set forth
in the Local Memorandum (LMOU) for all employees of the United States
Postal Service." S1 further stated "if I see any employee has missed
something or fail to do as they're suppose to do per the Handbook DM
902 (Procedures for Handling Registered Postal Bank Remittance Mail)
it is my responsibility to correct the infraction. He's not the only
one that has been corrected about violations in the Registry Room."
S1 stated that she talks to every employee "the same. If you talk to
me, I talk to you. I'm usually working and I just don't get into their
personal conversations unless they approach me."
With respect to complainant's allegation that S1 delayed or denied his
leave requests , S1 denied this assertion. S1 stated that for instance,
complainant alleged that on December 1, 2008, he overheard a named
female employee (E1) requesting annual leave for December 2 and 3,
2008, complainant "clearly does not understand the guidelines for the
daily annual leave and the different from 'daily annual leave' and your
'choice vacation period.'" Specifically, S1 stated that "daily annual
leave" is a day in the future you wish to be off and "the rule is that
you may sign the 'daily annual book' no more than 30 days in advance up
to the day before you want to be off. The Choice Vacation period is
vacation period. This leave is guaranteed." S1 stated that E1 also
"has forfeitable annual leave and uses it at the end of the year.
[Complainant] does not understand that it doesn't say you must sign
30 days in advance but you can not sign the book no more than 30 days
in advance of the date you want." S1 stated that while E1 worked on
December 1, 2008, she was granted leave for December 2 and 3, 2008.
S1 stated that complainant was denied two holidays in November 2008
because "there are . . . guidelines and he wants me to put them aside for
him and give him preferential treatment. And he continues to demonstrate
that he clearly doesn't understand the rules clearly."
Further, S1 stated that on December 3, 2008, complainant submitted a
PS Form 3971 requesting annual leave for December 27 and 28, 2008.
S1 stated that complainant was notified that he needed to resubmit
his request "because three weeks in advance is too early for me to
give him an answer." S1 stated that complainant has been made aware
on several occasions that she would not approve "'daily annual leave'
for anybody more than a couple of weeks in advance. Daily annual leave
is approved leave based on the needs of the Postal Service and is not
guaranteed leave. You can explain this to [complainant] one day and
the very next day he will again give you another PS Form 3971 for your
approval." S1 stated that on December 17, 2008, complainant resubmitted
his leave request for December 27 and 28, 2008, and she asked him why
he was late in submitting it and he responded stating that he forgot.
S1 stated that she attempted to enter Complainant's annual leave in the
TACS system but the "system would not let me enter 16 hours of annual
leave because he didn't have 16 hours of annual leave. Records show
he only had 11.83." S1 stated that in order for complainant to be off
on December 27 and 28, 2008, she gave him 11.83 hours of annual leave
and 4.17 hours approved leave without pay for a total of 16 hours.
S1 stated that when complainant reported to work on December 22, 2008,
she informed complainant what she did and "gave him a copy." S1 stated
that later that day, complainant informed her that he was not going to
take leave on December 27 and 28, 2008.
S1 stated that she disputed complainant's allegation that on December 15,
2008, he was reprimanded by S1 who was "violently furious" that he left
a PS Form 3971 on her desk. S1 stated as stated previously, complainant
"will [embellish] the truth and fabricate a story to serve his purpose."
S1 stated that a Tour 2 Supervisor "informed me that [complainant]
brought in a 3971 and left it on the desk. She said she spoke to him
about just leaving it on the desk because I tell everybody to hand me
their PS Form 3971 and not to leave on the desk."
With respect to complainant's allegation that he was harassed when he was
sent to Priority unit even though the Christmas rush was over, S1 stated
"I don't know where he gets his information from but it's all wrong.
Again, [complainant] is a Mail Processor with a bid job in the Priority
Room."
With respect to complainant's allegation that on December 15, 2008,
when he approached S1 concerning his timecard, she snarled at him in a
defensive mode, S1 stated "again it's him. Pas[t] actions has been shown
and proven that he tries to initiate confrontations and then play the
innocent party. That's why my answers are direct and to the point with
him and I keep personal notes to support my claims because he dislikes
me so and wants me moved from my current assignment."
The record reflects that complainant alleged that on December 29, 2008,
S1 questioned whether complainant should be in Priority room instead of
in the Registry room and that S1 started acting in a manner perceived
as violent when S1 asked him about a work-related issue. S1 stated
that she noted that because complainant was in the Registry unit, she
asked him "why wasn't he in the Priority Area. He said something about
the Christmas rush and that [a named Manager] did not tell him to go.
I explained to him that when he's on the schedule, he has to go. That's
it's not just for the Christmas rush it's going to be everyday because
of the low mail volume. During this time I was called by [named Manager]
to inform me that he had picked [named employee] back up as a supervisor,
so I told [complainant] he could remain in the Registry Room."
Further, S1 stated that complainant's accusations "are always part true
and part fabricated for his convenience and now he claims I'm getting
violent." S1 stated that during the period at issue, she was working
on entering the other pay location's personal information for [named
Manager] at her desk when complainant "asked for the vacation book.
I told him I would get it for him when I finished. I was still working
on the entries awhile later and he walked up and said 'I need to see
a Union Steward.'" S1 stated that she asked complainant what was the
issue but he stated that he wanted to see a steward. S1 stated "I was
working so I informed [complainant] that I needed to know what he needed
a steward for. He stated 'cause I want to see the annual leave book.'
I reiterated that I told him I would get the book as soon as I finished
but I would also call him a Union Steward." S1 stated that when she
completed her work, she called to request a steward for complainant and
"gave him the book so he could see whatever he was looking for because
he had already signed the vacation book for part of his 2009 leave."
On appeal, complainant submits a list highlighting the numerous violations
made by S1 and that he is subjected to ongoing harassment.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not
demonstrated that these reasons were a pretext for discrimination.
Harassment
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. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII 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 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the agency's findings. Therefore, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision concerning claims 3 - 4 because the preponderance of the
record evidence does not establish that discrimination occurred.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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 17, 2009
__________________
Date
1 For ease of reference, the Commission has numbered complainant's claims
as claims 1 - 3 and amended claims as claims 4 - 5.
2 On appeal, complainant does not challenge the agency's August 27, 2008
and February 12, 2099 partial dismissals regarding claims 1 - 2 and 5.
Therefore, we have not addressed these issues in our decision.
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0120092608
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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