01970877
10-27-1999
Frank Amador, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Frank Amador, )
Appellant, )
)
v. ) Appeal No. 01970877
) Agency No. 4H-330-1605-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
_______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission after receiving a final
decision from the agency 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. The appeal is accepted in accordance
with EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented in this appeal are: 1) whether the agency
discriminated against appellant on the basis of religion (Born Again
Christian) when on June 8, 1995, he resigned after being told he was
going to be terminated on June 23, 1995 and was not converted to a
career position; and 2) whether appellant, during the period of his
employment with the agency, was subjected to harassment because of his
Christian faith.
BACKGROUND
Appellant filed a formal complaint against the agency on November 17,
1995. Following an investigation of his complaint, appellant was provided
a copy of the investigative file and notified of his right to request
a hearing before an EEOC Administrative Judge (AJ). Appellant did not
request a hearing within the specified 30-day time period. Therefore,
the agency issued a final decision dated October 2, 1996, which found
that appellant had not been discriminated against. It is from this
decision that appellant now appeals.
The record indicates that appellant was hired on October 25, 1994, as a
Casual Maintenance Mechanic in the agency's Vehicle Maintenance Facility
(VMF) in Miami, Florida. Subsequently, he received two additional
90-day appointments on January 1, 1995 and April 1, 1995, respectively.
On June 8, 1995, appellant was notified that he, and all other casual
employees, would be terminated on June 23, 1994, at the conclusion of his
90-day term. Consequently, appellant submitted a letter of resignation,
effective June 8, 1995. According to appellant, three weeks after he
began working, he was told by A-1, the Manager, Vehicle Maintenance, that
he was going to be converted to a career position. However, one week
later, management and his co-workers discovered that he was a Christian
and a second year Bible Institute student.<1> According to appellant,
the attitudes and behaviors of management and his coworkers changed
towards him. "I became the punching bag," stated appellant. A-1, who a
week earlier had told appellant he would become a career employee, now,
according to appellant, made angry faces at him and would not return
his greetings.
Appellant also testified that A-2, his immediate supervisor, laughed at
him when he listened to Christian radio and acted like "one of the boys,"
instead of a supervisor. Appellant stated that he was ridiculed, told
constantly to "hurry up," had the hood of a vehicle almost slammed on
his hand<2> and had the key hole on his tool box sealed with epoxy glue.
Appellant further testified that because of his co-workers' actions,
he was placed under constant stress, extreme emotional distress and was
"under complete and total agony [in the VMF]."<3> The only reason that he
did not resign earlier, he stated, was A-1's promise that he, appellant,
would soon become a career employee. Finally, appellant maintained that,
on his last day of work, two individuals told him that he was "[a]n ok
[sic] guy, but that religion stuff does not go well in the workplace."
According to the agency, appellant failed to establish a prima facie
case of discrimination, based on religion, because he did not identify
similarly situated employees not within his protected group who were
treated differently under relatively like circumstances. The agency
noted that appellant received two 90-day casual appointments during
calendar year 1995, which was the maximum allowed under contractual
commitments. Appellant, the agency maintained, was unable to establish
that other casual employees, terminated during the same period, were
rehired for more than two terms during a calender year, or appointed
to a career position. The agency noted the testimony of E-1, a Senior
Personnel Services Specialist, that neither appellant nor any other
casual employee, who received two appointments during a calendar year,
was eligible for reappointment.
With regard to allegation (2), the agency found it to be "totally without
merit." According to the agency, even if comments were made about his
being a Born Again Christian, it would not have made a difference in the
outcome of this case. The agency indicated that it was contractually
limited to maintaining only six career employees at the VMF; therefore,
appellant could not have been converted to a career status position.
Finally, the agency found less than credible appellant's assertion that
A-1 told him that he would be converted to a career position, because
an individual supervisor can not make such a decision. According to
the agency, this is a function that was handled exclusively by Human
Resources. We note that a review of the investigative report and the
agency's final decision indicates that the agency did not investigate
or address appellant's specific contention that he was harassed by
management and his co-worker's because of his Christian faith.
ANALYSIS AND FINDINGS
Allegation (1)
At the outset, we find that the agency erred in concluding that appellant
did not establish a prima facie case of discrimination based on religion
merely because he did not identify similarly situated co-workers, who were
non-Christian, that were treated in a more favorable manner. To establish
a prima facie case, appellant need only present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination based on his national origin. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). It is not necessary for him to
show that a comparative individual, from outside of his protected group,
was treated differently. O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).
According to appellant, the agency discriminated against him on the
basis of his religion (Born Again Christian) when on June 8, 1995,
he resigned after being told he was going to be terminated on June
23, 1995, and when he was not converted to a career status position.
These allegations constitute claims of disparate treatment. Therefore,
they must be analyzed under the tripartite analysis enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Appellant has
the initial burden of establishing, by a preponderance of the evidence,
a prima facie case of discrimination; the burden then shifts to the
employer to articulate some legitimate, nondiscriminatory reason for its
challenged action; and appellant must then prove, by a preponderance of
the evidence, that the legitimate reasons offered by the employer were
not its true reasons, but were a pretext for discrimination.
The above analytical paradigm need not be adhered to in all cases.
In appropriate circumstances, when the agency has established a
legitimate, nondiscriminatory reason for its conduct, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, i.e., whether the complainant has shown by
preponderant evidence that the agency's explanations were a pretext for
actions motivated by prohibited discriminatory animus. See United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
Therefore, in the present case, the Commission will bypass the prima
facie stage of the analysis and focus on whether appellant proved that
the agency's explanation for its actions were a pretext for discrimination
based on religion. The agency provided unrebutted evidence that appellant
was not eligible for further employment with the agency as a casual
employee after June 23, 1995, because casual employees may not work more
than 180 days during a calendar year. Appellant also failed to rebut
the agency's contention that, notwithstanding A-1's alleged promise,
it was limited to having only six career status employees at the VMF.
Therefore, there were no available career status positions for appellant.
After a careful review of the record, the Commission finds that appellant
failed to establish, by a preponderance of the evidence, that the
legitimate reasons offered by the agency were not its true reasons,
but were a pretext for discrimination. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253-256 (1981).
Allegation (2)
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 patterned or pervasive. Garretson
v. Department of Veterans Affairs, EEOC Appeal No. 01945351 (April 4,
1996); McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985).
The Commission's Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June
18, 1999) identifies two types of such harassment: (1) harassment
that results in a tangible employment action; and (2) harassment that
creates a hostile work environment. Based on the facts of this case,
we will analyze this matter as an allegation of harassment that creates
a hostile work environment.
In order for harassment to be considered as conduct in violation of the
regulations that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). Unless the conduct is
very severe, a single incident or group of isolated incidents will not
be regarded as discriminatory harassment. Walker v. Ford Motor Co.,
684 F.2d 1355, 1358 (11th Cir. 1982).
We find that the agency did not adequately investigate appellant's claim
that, during his employment, he was subjected to harassment because
of his Christian faith. The agency, we note, did not obtain a single
sworn statement from appellant's co-workers or supervisors that directly
addressed this issue. E-1, the only agency official to provide a sworn
statement, testified that she did not even know appellant. The record
does contain two unsworn statements from A-1 and A-2. A-1 stated that
"at no time did anyone laugh at [appellant's] radio station. He was
told by me to turn it down because other employees said it was too loud.
All employees and management got along with [appellant] except for
one dispute he had." A-2 stated that "it is unfortunate [appellant]
has misinterpreted these actions and has made false accusations of the
management staff, in order to gain future employment."
Because of the inadequacy of the agency's investigation, we are unable
to determine whether appellant was subjected to harassment because of
his Christian faith and if so, whether it was pervasive or severe enough
to significantly and adversely alter the conditions of his employment
and create an abusive working environment. Therefore, we must REMAND
allegation (2) for a supplemental investigation in accordance with
the Order below. The agency's decision with regard to allegation (2)
is VACATED.
CONCLUSION
Based on our review of the record, we AFFIRM the final agency decision
with regard to allegation (1). We, however, VACATE the agency's
determination with regard to allegation (2). We REMAND allegation (2)
for a supplemental investigation.
ORDER
The agency is ORDERED to conduct an inquiry sufficient to enable it
to make a reasoned decision as to whether appellant, during his time
of employment with the agency, was subjected to harassment due to his
Christian faith. If the agency determines that appellant was subjected to
such harassment, the agency shall also determine whether the harassment
was pervasive or severe enough to significantly and adversely alter the
conditions of his employment and create an abusive working environment.
The agency will obtain affidavits from appellant, his former co-workers,
management officials and other persons who might have knowledge, e.g.,
non-agency employees that appellant may have spoke to about the way
he was being treated. Appellant will cooperate by providing the names
of any such persons, should they exist. The agency shall also obtain
sworn affidavits from the two individuals mentioned in appellant's
March 6, 1995 statement, who allegedly told him that he was an "[o]k
[sic] guy, but that religion stuff does not go well in the workplace."
Appellant also mentioned a senior supervisor, who spoke to the Postal
Police on his behalf. The agency will also obtain a sworn affidavit from
this individual. Finally, although the record contains a copy of the
statement that appellant submitted to the Postal Police concerning the
incident where the hood of a vehicle was almost slammed on his hand, we
find no information about the investigation and its findings. Therefore,
the agency will obtain this information and make certain that it is a
part of the supplemental record.
The supplemental investigation must be completed within ninety (90)
calendar days of the date that this decision becomes final. The agency
then shall provide appellant with a copy of the supplemental investigative
file. Thereafter, the agency shall issue a final decision within sixty
(60) calendar days of the supplemental investigation's conclusion. A
copy of the agency's notice transmitting the supplemental investigative
file to the appellant must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 this 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 this 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 this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
10-27-99
DATE Carlton Hadden, Acting Director
1According to appellant, the discovery was made when he began listening
to a Christian radio station throughout the day.
2This incident resulted in a Postal Police investigation. According to
appellant, A-2 forced him to drop the charges by threatening his job.
3Among other things, appellant sought "monetary damages" as a remedy.