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

Equal Employment Opportunity CommissionDec 22, 1999
01980629 (E.E.O.C. Dec. 22, 1999)

01980629

12-22-1999

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


Johnny N. Camou, )

Complainant, )

)

v. ) Appeal No. 01980629

)

William J. Henderson, ) Agency No. 1E-853-1065-96

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

)

DECISION

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

concerning his complaint of unlawful employment discrimination on the

bases of national origin (Hispanic) and reprisal (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: (1) he was physically and verbally assaulted by a

co-worker; and (2) the agency issued him a Notice of Proposed Removal

which was later reduced to a Letter of Warning in lieu of a seven-day

suspension. The Commission accepts this appeal in accordance with EEOC

Order No. 960.001. For the following reasons, we AFFIRM the agency's

decision as clarified herein.

The record reveals that during the relevant time, complainant was employed

as a Supervisor, Distribution Operations, at the agency's Phoenix

Processing and Distribution Center. Complainant alleged that on July

11, 1996, he had a confrontation with a fellow supervisor, Supervisor,

Transportation Operations (�STO�), which culminated into STO physically

assaulting him. Complainant reported the incident to his supervisor.

Apparently, STO also reported the incident claiming that complainant

physically assaulted him first. Both complainant and STO were sent

home pending an investigation. On August 7, 1996, the agency issued a

Notice of Proposed Removal to both complainant and STO. After further

investigation, the Senior Plant Manager reduced complainant's discipline

to a Letter of Warning in lieu of a seven-day suspension and reduced STO's

discipline to a Letter of Warning in lieu of a fourteen-day suspension.

The Senior Plant Manager stated that STO received greater discipline

because he was the aggressor in the incident. While noting that

complainant was not the aggressor, the Senior Plant Manager nevertheless

determined that complainant had not acted in a manner to abate the

situation, but instead engaged in a verbal exchange that served to

intensify the situation.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on September 26, 1996.

The agency accepted the complaint for processing, and at the conclusion

of the investigation, complainant was granted thirty days to request

either a hearing before an EEOC Administrative Judge or an immediate FAD.

After complainant requested a FAD, the agency issued its decision finding

no discrimination.

The FAD concluded that complainant failed to establish a prima facie

case of race or reprisal discrimination because he presented no evidence

that others outside his race were treated differently under similar

circumstances or that there was a causal connection between his prior

EEO activity and the agency's actions. The FAD nevertheless concluded

that the agency articulated legitimate, nondiscriminatory reasons for

its actions, namely, that complainant's discipline resulted because

of his part in the altercation with STO. Finally, the FAD concluded

that complainant presented no evidence to demonstrate that the issued

discipline was a pretext for race or reprisal discrimination. On appeal,

complainant makes no new contentions, and the agency requests that we

affirm the FAD.

Initially, we note that the agency failed to address complainant's

retaliatory harassment claim. Complainant asserts that STO's actions

on July 11, 1996, constituted harassment and that the agency was aware

of STO's propensity toward inappropriate behavior. As the FAD failed to

provide an analysis of the harassment claim, the Commission will address

it here.

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

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

EEO activity is unlawful, if it is sufficiently patterned or pervasive.

Wibstad v. United States Postal Service, EEOC Appeal No. 01972699

(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39

(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift

Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working

environment is hostile, factors to consider are the frequency of the

alleged discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and if it unreasonably interferes with an

employee's work performance. See Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has

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).

To establish a prima facie case of hostile environment harassment, a

complainant must show that: (1) he belongs to a statutorily protected

class; (2) 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. United States Postal Service, Appeal No. 01965238 (October

16, 1998); 29 C.F.R. � 1604.11. Evidence of the general work atmosphere,

involving employees other than the complainant, also is relevant to the

issue of whether a hostile environment existed in violation of Title VII.

Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant

part and rev'd in part, Meritor Savings Bank v. Vinson, 477 U.S. 57

(1986).

Complainant contends that STO's physical assault on July 11, 1996,

constituted retaliatory harassment. In reviewing the evidence,

we find that complainant failed to establish a prima facie case of

retaliatory harassment. While complainant establishes that he engaged

in prior EEO activity and was subjected to unwelcome physical conduct,

he has failed to demonstrate that STO's actions were based his prior

EEO activity. Complainant asserts that STO's actions resulted because

he provided testimony against a friend of STO in a separate EEO matter.

We, however, find nothing in the record to link complainant's prior

EEO activity to his July 11, 1996 confrontation with STO. The record

indicates that the parties had a disagreement regarding the availability

of one of STO's drivers. This appears to be the crux of the altercation.

We find no credible evidence demonstrating that this disagreement stemmed

from any prior EEO incidents. As a result, we concluded that the record

fails to support a finding of retaliatory harassment.

As for complainant's disparate treatment claim, we find that complainant

failed to demonstrate that management's reasons for the discipline

were pretext for unlawful national origin or reprisal discrimination.

While complainant asserts that Hispanic employees were treated

less favorably by management, he provides no credible evidence,

other than his bare assertion, to support his statement. Likewise,

complainant fails to establish retaliation in this case. Even though

complainant provided unfavorable testimony against the agency in the

prior EEO matter, we find no credible evidence showing that the Senior

Plant Manager was motivated by retaliation in issuing the discipline.

The Senior Plant Manager credibly stated that, even though complainant

was not the aggressor in this matter, he received discipline because

his actions were unbecoming a supervisor. 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.

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:

December 22, 1999

Date Carlton M. Hadden, Acting Director

Office of Federal Operations1 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.