James A. Manzano, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionJan 7, 2000
01985474 (E.E.O.C. Jan. 7, 2000)

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.