01985474
01-07-2000
James A. Manzano, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.
James A. Manzano, Jr. v. United States Postal Service
01985474
January 7, 2000
James A. Manzano, Jr., )
Complainant, )
) Appeal No. 01985474
v. ) Agency No. 1A-126-1065-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination and
harassment on the bases of sex (male) and in reprisal for prior EEO
activity in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges he was
discriminated against when on May 7, 1996, he received a Letter of Warning
(LOW). The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission affirms the FAD as clarified
herein.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's Mid-Hudson Processing
and Distribution Center in Newburgh, New York. Believing the agency
discriminated against him as referenced above, complainant sought EEO
counseling and filed a complaint on June 21, 1996. At the conclusion of
the investigation, when complainant failed to make a timely request for
a hearing before an EEOC Administrative Judge, the agency issued a final
decision from which complainant now appeals. We note that the FAD, which
the agency requests we affirm on appeal, was unacceptably perfunctory and
failed to support its legal conclusion with either evidence or analysis.
64 Fed. Reg. 37,644, 37,657-58 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.110(b)).
On appeal, complainant requests that, pursuant to 64 Fed. Reg. 37,644,
37,661 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.606), the Commission consolidate this claim with his three other
claims of alleged discrimination and harassment. Although complainant
submits several documents identified as pertaining to Agency Case
No. 1A-126-0020-97, that claim and complainant's other claims are not
currently before the Commission and consequently, we are unable to
consolidate them. Complainant also contends that he did not receive
notice of his right to a hearing before an EEOC Administrative Judge, but
the record contains certified mail confirmation that complainant received
and signed for such notice on October 26, 1997. Complainant further
argues that the agency "lost" this case during a grievance proceeding.
We remind complainant that the agency's grievance proceeding and
the EEO process are distinct avenues of redress. The scope of an EEO
investigation is limited to determining whether unlawful discrimination
motivated an agency's action. Thus, while the Commission may find that
an agency's action lacked discriminatory intent, the grievance proceeding
may find the action improper on other grounds.
After a careful review of the record, based on the standards set
forth in McDonnell Douglas Corp. 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 Commission finds
that complainant failed to establish a prima facie case of discrimination
or retaliation.<2> There is no evidence that complainant was treated
less favorably than similarly situated female employees or that there was
a causal connection between his prior protected activity and the LOW.
Management stated that complainant received the LOW because he was
verbally abusive and disrespectful, calling his supervisor a "crater
face" and referring derogatorily to his supervisor's physical appearance.
While we note that at a level Step Three grievance, the LOW was reduced
to an official discussion, there is no evidence in the record from which
we can infer that management's decision to issue the LOW was motivated
by discriminatory or retaliatory animus. In his affidavit, complainant
alleged that the LOW was issued to harass him. Based on the standards
set forth in Harris v. Forklift Systems Inc., 510 U.S. 17, 21 (1993),
we find that the LOW, standing alone, was insufficiently severe or
pervasive to create a hostile work environment.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
January 7, 2000
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
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.
2 In its statement in support of its FAD, the agency incorrectly stated
that complainant must prove that "but for" his prior protected activity,
he would not have been disciplined. We remind the agency that complainant
must prove that retaliation was a motivating, not a determining, factor
in the agency's action.