0120073265
12-08-2009
Peter Cano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Peter Cano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120073265
Agency No. 4E852001806
DECISION
On July 12, 2007, complainant filed an appeal from the agency's June 12,
2007 final decision concerning his equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether complainant established that he was subjected to a hostile work
environment or disparate treatment based on his sex, race, national
origin and/or reprisal.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisor, Customer Services at the Downtown Station, located in
Peoria, Arizona. On December 5, 2006, complainant filed an EEO complaint
alleging that he was discriminated against on the bases of race/national
origin (Mexican-American), sex (male), and reprisal for prior protected
EEO activity [under Title VII], when, on August 1, 2006, and prior, he was
subjected to a hostile work environment created by the Postmaster (P1).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision (FAD) pursuant to 29
C.F.R. � 1614.110(b).
Final Agency Decision
The FAD explained that complainant alleged that he was subjected to a
hostile work environment created by P1 (Hispanic male). Specifically,
complainant contends that on August 1, 2006, in an email message to the
Manager, Post Office Operations (M1), P1 stated, "...Peter Cano is the
supervisor now at DTS and to tell you the truth between him and [the
Station Manager] (Mexican-American male)... you don't have enough brains
to make one taco." Complainant further testified that on August 7, 2006,
he noticed an email from P1 to M1 regarding a day off he had requested
in advance to attend a funeral out of town. Complainant stated that his
credibility was called into question in the email message, and asserts
that other supervisors are not harassed and accused of being deceitful
about personal issues in order to take pre-approved leave.
Complainant further testified that P1 has accused him of falsifying
Time and Attendance Collection System (TACS) records by inputting his
own time in order to benefit personally. He contends that, unlike most
supervisors, he has been required to punch the clock manually instead of
being accorded automatic clock rings. Additionally, complainant asserts
that he was treated differently than other supervisors, specifically, an
Anglo American male (A1) and an Anglo American female (A2). He contends
that they were allowed to remain on automatic clock rings, whereas he
was not. The FAD found that complainant further alleges that both A1
and A2 were given the opportunity to act as postmaster in the absence of
P1, whereas, he and the Station Manager were not. Complainant contends
that P1 reassigned him to the Downtown Station, and placed him under
a microscope. He also contends that P1 would send other supervisors to
perform Customer Service Daily Reporting Service (CSDRS) audits in an
effort to uncover infractions for which he would be held accountable.
Complainant testified that the stress created by P1's actions eventually
took its toll on him and caused him to seek medical attention. The FAD
noted that complainant stated that he was off work for medical reasons
from February through April 2006, and again for two weeks in November
2006, just prior to his resignation.
The FAD found that the alleged harassment, taken together, is not severe
or pervasive enough to be considered unlawful. The FAD concluded that
the claim of a hostile work environment fails. The FAD further found
that complainant could establish that he previously engaged in protected
EEO activity, and therefore, he was unable to establish a prima facie
case of retaliatory animus relative to management's actions.
The FAD further noted that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the FAD found
that P1 acknowledged that his "taco" comment was made in poor taste.
P1 stated, however, that his choice of words were used to convey his
feelings about a situation wherein reports were not being timely completed
and the station manager did not follow up. The FAD found that P1 stated
that the comment was made by one Hispanic individual referring to another
Hispanic individual, and that the comment had no malicious intent.
As to complainant's claim that he was the only supervisor required to
make manual clock rings, or that he was the only supervisor reassigned
from his station, the FAD found that this was not supported by the
evidence of record. The FAD found that additionally, P1 refuted
complainant's claims that he was accused of falsifying clock rings.
P1 testified that he only sought clarification from M1 as to why there
was an input into the TAGS system reflecting complainant's I.D. on a
day when he was supposedly not at work. In response to complainant's
claim that P1 questioned some leave that he had taken, P1 asserted that
he simply questioned the rationale of M1 in allowing his supervisors to
be off on Mondays when Monday was the busiest work day. Responding to
complainant's claim regarding the CSDRS audit, P1 testified that it was
another supervisor's decision to conduct the audit and that the audit was
conducted by that supervisor while he served as the OIC in P1's absence.
He stated that the supervisor conducted the audit before the District
conducted their audit, to ensure that everything was in order. The FAD
found that complainant did not satisfy his burden of showing that the
agency's reasons were more likely than not, pretexts for discriminatory
animus. The decision concluded that complainant failed to prove that he
was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant makes no new arguments. The agency asks the
Commission to affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Hostile Work Environment Harassment
To establish a claim of harassment a complainant must show that: (1)
they belong to a statutorily protected class; (2) they were subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on
their statutorily protected class; (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; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982). Further, the incidents must have been "sufficiently
severe or pervasive to alter the conditions of [complainant's] employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 at 6 (March 8, 1994).
With respect to element (5), an employer is subject to vicarious
liability for harassment when it is created by a supervisor with immediate
(or successively higher) authority over the employee. See Burlington
Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93
(1998). However, where the harassment does not result in a tangible
employment action the agency can raise an affirmative defense, which is
subject to proof by a preponderance of the evidence, by demonstrating:
(1) that it exercised reasonable care to prevent and correct promptly
any harassing behavior; and (2) that complainant unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the agency or to avoid harm otherwise. See Burlington Industries,
supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999). This defense is not available when the harassment results in a
tangible employment action (e.g., a discharge, demotion, or undesirable
reassignment) being taken against the employee. In the case of co-worker
harassment, an agency is responsible for acts of harassment in the
workplace where the agency (or its agents) knew or should have known of
the conduct, unless it can show that it took immediate and appropriate
corrective action. Id.
Here, complainant has not established element (4), namely, that the
harassment was sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.
Although complainant contends that he required time off work and
ultimately resigned because of the workplace conduct, from the objective
viewpoint of a reasonable person in the victim's circumstances, we do not
find that the conduct at issue was severe or pervasive. Additionally,
the medical evidence in the record does not indicate that complainant
had to take leave because of harassment at work. We note that we do not
have the benefit of an Administrative Judge's findings after a hearing,
and therefore, we can only evaluate the facts based on the weight of
the evidence presented to us.
In addition, we note that although complainant claims that he resigned
on November 27, 2006, in order to avoid further medical problems due to
the harassment, constructive discharge was not an accepted issue in the
complaint. Complainant was notified by letter dated February 15, 2006,
that the issue to be investigated was "hostile work environment" which
took place "on August 1, 2006, and prior," and there is no indication
that complainant objected to the framing of the issues. Regardless, as
complainant has not shown that a reasonable person in his position would
have found the working conditions intolerable (based on the incidents
described in this record) and/or that conduct which constituted prohibited
discriminatory treatment created intolerable working conditions, he
cannot show that his resignation was involuntary.1
Disparate Treatment Claims
Briefly, we address complainant's claims that he was: (a) placed on manual
clock rings, while others were not, (b) subjected to a surprise audit,
(c) not permitted to be an Acting Postmaster; and (d) was reassigned to
the Downtown Station so that P1 could watch him closely. The allocation
of burdens and order of presentation of proof in a Title VII case
alleging disparate treatment discrimination is a three step procedure:
complainant has the initial burden of proving, by a preponderance of
the evidence, a prima facie case of discrimination; the burden then
shifts to the employer to articulate some legitimate, nondiscriminatory
reason for its challenged action; and complainant must then prove, by a
preponderance of the evidence, that the legitimate reason offered by the
employer was not its true reason, but was a pretext for discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Assuming complainant could establish a prima facie case of discrimination
on the alleged bases, the agency has articulated legitimate,
nondiscriminatory reason for its actions. Specifically, P1 denied that
the requirement concerning manual clock rings only applied to complainant.
P1 stated: "I place all of my supervisors on manual clock rings so that
they are paid for every hour they work. This also minimizes compensatory
time issues. This is actually a benefit for the supervisors as they
are paid for the overtime they work." ROI, Affidavit B, at 11. As to
the audit, P1 stated that it was conducted by another supervisor when P1
was absent from work, and that P1 did not direct that supervisor to do
the audit. Id. at 12. P1 further noted that the supervisor conducted
the audit in advance of an audit from the district to ensure everything
was in order. Id. P1 also stated that he believed that an audit was also
conducted on A2. Id. As to the claim concerning not being asked to act
as Postmaster, P1 admitted that individuals not in complainant's protected
groups have acted as supervisor, but he noted that complainant never made
him aware he was interested in acting as postmaster. Id. Additionally,
the record shows that other supervisors, outside complainant's protected
groups, had also not been asked to act as Postmaster. Finally, as to
the claim that P1 reassigned complainant from the Downtown Station to
the Main Office so that he could watch complainant closely and look
for any infractions, the record indicates that most of the Supervisors
were given reassignments, and P1 stated that this was intended to give
them developmental opportunities to learn another operation, and not
for discriminatory reasons. Id. at 4. Upon review of the record, the
Commission finds that complainant has not established, by a preponderance
of the evidence, that the agency's reasons for its actions are pretexts
for discrimination on any alleged basis.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
______12/08/09____________
Date
1 A discriminatory constructive discharge occurs when the employer,
motivated by discriminatory animus, creates working conditions that
are so difficult, unpleasant, or intolerable that a reasonable person
would feel compelled to resign. Doe v. Social Security Admin., EEOC
Appeal No. 01A114791 (Feb. 21, 2003). In other words, the employee
is essentially forced to resign under circumstances where the
resignation is tantamount to the employer's termination or discharge
of the employee. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574
(8th Cir. 1997). The Commission has adopted a three-pronged test for
establishing a constructive discharge. Complainant must show that:(1)
a reasonable person in his position would have found the working
conditions intolerable; (2) conduct which constituted prohibited
discriminatory treatment created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. Greer v. United States Postal Serv., EEOC Appeal
Nos. 01976756, 01976792 (Dec. 29, 2000) (citing Taylor v. Department of
Defense, EEOC Request No. 05900630 (July 20, 1990)).
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0120073265
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073265