Don N. Limin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionNov 19, 1999
01974933 (E.E.O.C. Nov. 19, 1999)

01974933

11-19-1999

Don N. Limin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Don N. Limin, )

Complainant, )

) Appeal No. 01974933

v. ) Agency No. 4F-940-1203-94

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his Equal Employment Opportunity (EEO) 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> Complainant alleges

that the agency discriminated against him on the bases of race (Filipino),

national origin (Filipino) and in reprisal for prior EEO activity. The

Commission accepts the appeal in accordance with EEOC Order No. 960.001.

For the following reasons, we affirm the FAD as clarified herein.

The record reveals that during the relevant time, complainant worked

as a Carrier Technician at the agency's Bryant Street Annex in San

Francisco, California. Complainant filed four complaints which

the agency consolidated for processing. In support of his claim,

complainant identifies the following incidents: a supervisor made a

demeaning remark; he was not selected for instructor training; he was

blamed for the cancellation of the Employee Involvement program; he was

told to be in full uniform; he was moved while doing union business;

he was denied a PS Form 3996; he was told he had messed up a desk;

he was told he misspelled a name; comments were made that he did not

like; he was told about his break time and his uniform; he was given a

direct order while on steward time; he was threatened with discipline;

and he was informed about a sequencing error. At the conclusion of the

investigation, when complainant failed to timely request a hearing before

an EEOC Administrative Judge, the agency issued its final decision from

which complainant now appeals. On appeal, complainant contends that

the agency's investigation was unfair, biased, deceptive, dishonest,

undated and corrupt. The agency requests that we affirm the FAD.

The agency treated each of the incidents raised as a separate

claim of disparate treatment and dismissed most of the incidents

pursuant to 64 Fed. Reg 37644, 37656, (1999) (to be codified at

29 C.F.R. � 1614.107(a)(1)). Based on the standards set forth in

McDonnell Douglas v. Green, 411 U.S. 792 (1973), Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253-256 (1981), and

Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to retaliation cases), the agency also

found that even if complainant had established a prima facie case of

discrimination on any basis, he failed to present credible evidence

that management's explanations for its actions were a pretext to mask

unlawful discrimination. We agree with the agency's conclusion since

there is no evidence to support a finding that any of the agency's

conduct was motivated by discriminatory animus toward complainant's

race, national origin or prior EEO activity. However, the agency did

not address complainant's claim of harassment. When confronted with

a claim such as this, the agency cannot, ignoring the pattern aspect

of the alleged incidents, define the claim in a piecemeal manner.

See Ferguson v. Department of Justice, EEOC Request No. 05970792 (March

30, 1999). Accordingly, we will review the merits of complainant's

claim of harassment.

Based on the standards set forth in Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993), in order to prevail on his claim of race, national

origin or retaliatory based harassment, complainant must prove that: (1)

he was subjected to harassment that was sufficiently severe or pervasive

to alter the terms or conditions of employment and create an abusive or

hostile environment; and (2) the harassment was based on his membership

in a protected class. See EEOC Notice No. 915.002 (March 8, 1994),

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

v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

The Supreme Court stated: �Conduct that is not severe or pervasive enough

to create an objectively hostile work environment - an environment

that a reasonable person would find hostile or abusive - is beyond

Title VII's purview.� Harris, 510 U.S. at 22 (1993). Additionally,

our guidelines state that: �In defining the hypothetical reasonable

person, the Commission has emphasized that the reasonable person standard

should consider the victim's perspective and not stereotyped notions

of acceptable behavior.� EEOC Notice No. 915.002 (March 8, 1994),

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

Upon review, the Commission concludes that, considered both qualitatively

and quantitatively, the incidents raised by complainant are neither

sufficiently severe nor pervasive to create an objectively hostile

or abusive work environment. In reaching this conclusion, we find

that the incidents involved common workplace occurrences which were

not so offensive or abusive as to offend the general sensibility of a

reasonable individual. See Wolf v. United States Postal Service, EEOC

Appeal No. 01961559 (July 24, 1998). We also find that many of the

incidents about which complainant complains directly resulted from his

less than professional conduct in the office. Accordingly, we conclude

that the agency did not harass complainant.

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 as

clarified.

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).

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 the 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 the 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 the 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:

November 19, 1999

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:

_________________________

__________________________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.