0120081398
07-23-2009
Paul S. Juarez, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul S. Juarez, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081398
Agency No. 1F937000807
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 3, 2008, dismissing 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
The record indicates that complainant was employed as a Mail Handler
at the agency's facility in Fresno, CA. Complainant contends that
agency officials discriminated against him when since August 31, 2007,
he was subjected to a hostile work environment when he was harassed by
a co-worker and threatened with discipline if he continued to report
the harassment. The record further indicates that complainant stated
that he reported the alleged incident of harassment from a co-worker
to agency officials on February 28, 2007.1 In a complaint dated May
26, 2007, complainant alleged that he was subjected to discrimination
on the bases of race (Hispanic), national origin (Mexican), religion
(Catholic), disability2 (right knee; disabled veteran), and reprisal
for prior protected EEO activity when:
1. he has been continually harassed by a co-worker and the agency has
not taken appropriate action to remedy the alleged harassment; and
2. on March 14, 2007, complainant was threatened with discipline if he
continued to report the alleged harassment.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively to receive a final decision by the agency.
Although complainant initially requested a hearing before an AJ,
complainant withdrew his hearing request and requested a final agency
decision. In its decision, the agency found that complainant was not
discriminated against on any alleged basis. The agency determined that
even assuming arguendo that complainant established a prima facie case
of discrimination, the agency proffered legitimate non-discriminatory
reasons for its actions, and complainant failed to demonstrate that the
agency's reasons were a pretext for discrimination.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
The Commission determines that the agency articulated legitimate
non-discriminatory reasons for its conduct. Specifically, the agency
witnesses indicated that complainant failed to provide his supervisor with
statements or reports regarding any alleged harassment by a co-worker,
other than complainant's February 28, 2007 report to his supervisor.
The record further discloses that agency officials promptly investigated
complainant's February 2007 complaint, inlcuding interviewing
an individual suggested by complainant. The witness suggested by
complainant had no recollection of any incident of harassment regarding
complainant and a co-worker. Consequently, complainant was called into
his supervisor's office on March 14, 2007, and told that his complaint of
harassment could not be substantiated and that no action would be taken
against the coworker. Complainant was further advised that he could be
held accountable in the future for making unsubstantiated allegations
against coworkers, including being subjected to corrective action. Several
management witnesses stated that complainant was not told he might be
disciplined for reporting harassment, but was rather advised that he
should be "cautious" in lodging allegations of misconduct by coworkers
with support. Moreover, a manager testified that she intervened in the
conversation complainant was having with his supervisor on March 14, 2007,
and clarified that the supervisor was not stating that he could not report
harassment, and that it was his right to do so. The record is clear
that no action was taken against complainant. Based on this evidence,
we find that complainant has not demonstrated that he suffered an adverse
action or that he was subjected to a hostile work environment so severe
or pervasive that it altered the conditions of his employment.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. Complainant fails to provide
evidence that the agency's conduct was based on any discriminatory animus
toward complainant's protected classes.
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 agency's
final decision finding no discrimination.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 23, 2009
__________________
Date
1 We note here that the record does not specifically describe the incident
of harassment complainant complained of to his supervisor on February
28, 2007. However, it appears that complainant alleged that the coworker
humiliated him about his work performance in front of his coworkers at
a stand-up meeting.
2 For purposes of analysis, the Commission assumes without finding that
complainant is an individual with a disability. 29 C.F.R. �1630.2(g)
(i).
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0120081398
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081398