Pablo Ramirez, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest areas), Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01973662 (E.E.O.C. Oct. 20, 1999)

01973662

10-20-1999

Pablo Ramirez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest areas), Agency.


Pablo Ramirez v. United States Postal Service

01973662

October 20, 1999

Pablo Ramirez, )

Appellant, )

)

v. ) Appeal No. 01973662

)

William J. Henderson, ) Agency No. 4-H-327-1158-96

Postmaster General, )

United States Postal Service, )

(Southeast/Southwest areas), )

Agency. )

_______________________________)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the United States Postal Service (agency) concerning his complaint of

unlawful 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.

Appellant alleges discrimination based upon his national origin

(Peruvian), when: (1) on February 27, 1996, he was placed on emergency

suspension; and (2) on March 12, 1996, he was placed on administrative

leave. The appeal is accepted in accordance with EEOC Order No. 960.001.

On or about May 5, 1996, appellant filed a formal complaint alleging

discrimination as referenced above. Appellant's complaint was accepted

for processing. Following an investigation, appellant expressly

waived his right to a hearing before an EEOC Administrative Judge (AJ).

Thereafter, on March 3, 1997, the agency issued its final decision finding

no discrimination. It is this agency decision which the appellant now

appeals.

The record reveals that appellant's supervisor, S1 (Hispanic<1>), made

an allegation that on February 27, 1996, appellant threatened to hurt

and kill S1 while using profanity. Specifically, S1 alleged that at

approximately 12:55 p.m. he approached appellant at the Lynx Bus Station

Parking Lot and asked him why he was not delivering his route after having

had his half-hour lunch break. According to S1, appellant told him to

go f__k himself, to get out of his face, and that he would kill him.

In addition, S1 alleged that appellant approached him in a hostile and

threatening manner. S1 further alleged that he ordered appellant to

return to the office, but he refused to do so.

Appellant categorically denied the allegations made by S1. In his

EEO complaint appellant alleged that S1 had been harassing appellant

for months because appellant is from Peru and S1 is from Equador.

Appellant alleged that S1 fabricated the entire incident on February 27,

1996, in an effort to get him fired.

According to the FAD, the agency determined that appellant failed to prove

a prima facie case of national origin discrimination since he failed to

present similarly situated comparators outside appellant's protected

group, who were treated more favorably than appellant. In addition,

the agency also found that assuming appellant did present a prima facie

case of discrimination, it nevertheless found that the agency articulated

a legitimate, non-discriminatory reason for its employment decision,

that the agency has a "no tolerance" policy with respect to violence and

threats of violence. Lastly, the agency found that appellant failed to

present any evidence of pretext or discriminatory animus.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission

finds that, in all material respects, the agency accurately set forth

the relevant facts and properly analyzed the case using the appropriate

regulations, policies, and laws.

In his complaint and on appeal, appellant argues that S1 fabricated the

February 26, 1996 incident and the agency failed to properly investigate

S1's allegations prior to disciplining appellant. Moreover, appellant

asserts that S1 had been harassing appellant for several months prior

to the incident. As evidence to support this contention, appellant

provided a letter that he wrote to his union representative dated July

9, 1995 (approximately six months prior to the alleged altercation).

Appellant explained to the union representative, inter alia, that: (1)

S1 follows appellant around during his shift and stares at appellant in

an effort to intimidate him; (2) on two separate occasions, S1 stated

to appellant that "I fired a Cuban once and very soon I am going to fire

another Latino;" (3) S1 constantly checks up on appellant's work; and (4)

S1 often denies appellant overtime while assigning other workers overtime.

Appellant also argues in his complaint and on appeal, that S1 has been out

to get appellant because S1 is from Equador and appellant is from Peru.

According to appellant, the two countries are against each other.

We find that even assuming S1 fabricated the February 26, 1996 incident

and conducted a bogus investigation, the record, nevertheless, fails to

support a finding of discrimination. We find that appellant has failed

to present sufficient probative and credible evidence which supports the

finding of discriminatory animus. For example, there is no evidence in

the record which substantiates appellant's claim that he was harassed by

S1 prior to the February 27, 1996 incident. Nor is there evidence which

shows that appellant was denied overtime or that others were granted

overtime. Lastly, there is no evidence in the record which supports

appellant's claim that S1 was biased against Peruvians because of his

Ecuadoran descent. Therefore, even if we were to find that S1 treated

appellant differently, we are not persuaded by the record that he was

motivated by appellant's national origin. Accordingly, we discern no

basis upon which to disturb the AJ's finding of no discrimination and

hereby AFFIRM the agency's final decision.

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 (S0993)

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. 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:

10/20/99

_______________ _________________________________

DATE Carlton M. Hadden, Acting Director

1While S1 identifies himself as "Hispanic," appellant asserts that a

more accurate description of S1 is "Ecuadorian."