Eugene M. Braganza, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 4, 2009
0120083559 (E.E.O.C. Feb. 4, 2009)

0120083559

02-04-2009

Eugene M. Braganza, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Eugene M. Braganza,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120083559

Hearing No. 570-2007-00562X

Agency No. 4K-220-0111-06

DECISION

On August 11, 2008, complainant filed an appeal from the agency's July

3, 2008 final order concerning his equal employment opportunity (EEO)

complaint alleging 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. The appeal is deemed timely and is accepted pursuant to

29 C.F.R. � 1614.405(a).

During the relevant period, complainant was employed as a Rural Carrier

at a Virginia facility of the agency. In a formal EEO complaint dated

October 30, 2006, complainant alleged that he was discriminated against

on the basis of race (Asian-American) when, between July 2004 and August

2006, management subjected him to a hostile work environment and treated

him disparately regarding discipline, privileges and the conditions of

his employment.

At the conclusion of an agency investigation, complainant was provided

with a copy of the report of investigation and notice of his right to

request a hearing before an EEOC Administrative Judge (AJ). Complainant

requested a hearing. Over complainant's objections, the AJ assigned to

the case granted the agency's motion for a decision without a hearing.

On June 30, 2008, specifically, the AJ concluded that complainant

failed to specify or show how the agency's actions were motivated by

his protected class. Further, the AJ stated, "the allegations that

comprise [c]omplainant's harassment claim are essentially personnel

decisions taken by management in the usual course of business with

which [c]omplainant does not agree . . . [c]omplainant's disagreement

with these decisions does not transform them into discriminatory or

harassing ones." Subsequently, the agency issued a final order adopting

the AJ's finding that complainant failed to prove that he was subjected to

discrimination as alleged. The instant appeal from complainant followed.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be

regarded as discriminatory harassment unless the conduct is severe.

Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

[and the Rehabilitation Act] must be determined by looking at all 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 (1993).

To establish a prima facie case of hostile environment harassment,

a complainant must show that: (1) s/he is a member of a statutorily

protected class; (2) s/he was subjected to harassment in the form of

unwelcome verbal or physical conduct involving the protected class;

(3) the harassment complained of was based on the statutorily protected

class; and (4) the harassment affected a term or condition of employment

and/or had the purpose or effect of unreasonably interfering with the work

environment and/or creating an intimidating, hostile, or offensive work

environment. Humphrey v. U. S. Postal Service, EEOC Appeal No. 01965238

(October 16, 1998); 29 C.F.R. �1604.11. The harasser's 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 issuance of a decision without

a hearing was appropriate. Further, we find, assuming the actions

complainant alleged rose to the level of a hostile work environment,

complainant failed to show that the said actions were based on

discriminatory motives. Lastly, to the extent that complainant

alleged disparate treatment, we find that he failed to show pretext by

a preponderance of the evidence. Accordingly, we AFFIRM the agency's

finding of no discrimination.

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

February 4, 2009

__________________

Date

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0120083559

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083559