0120110852
09-28-2012
Richard Santiago, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Richard Santiago,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120110852
Agency No. 4E890001510
DECISION
On November 10, 2010, Complainant filed an appeal from the Agency's October 20, 2010, final decision (FAD) 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against on the basis of reprisal for prior EEO activity when he alleges that management subjected him to twenty-seven (27) separate incidents of harassment occurring between November 11, 2008 and February 6, 2010.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Winterwood Station facility in Las Vegas, Nevada. On March 2, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII when: 1) on November 11, 2008, he was threatened with disciplinary action for not finishing his route in eight (8) hours; 2) on November 12, 2008, he was given an investigative interview for taking a break in an unauthorized area; 3) on December 12, 2008, he was issued a Letter of Warning for not updating a doctor's note; 4) on January 8, 2009, a prior Letter of Warning that had been reduced to a discussion was forwarded to Labor Relations; 5) on or about January 12, 2009, he was harassed by a supervisor who kept staring at him for no reason; 6) on March 16 and March 23, 3009, he was forced to carry his route in violation of his medical restrictions; 7) on March 30, 2009, he was called into the office and rudely told to answer the phone when he had previously been told not to answer the phone; 8) on March 31,2009, his supervisor was rude when he asked when he could go on break; 9) on April 30, 2009, he was given an investigative interview for mail in his case dated March 13, 2009; 10) on May 6, 2009, his supervisor walked past his case and kicked the trash can; 11) on May 9, 2009, his supervisor threw the EEO interview notice that he provide to her back at him and later placed it in the trash; 12) on May 29, 2009, his supervisor yelled at him about the "blue door" being open; 13) on June 15, 2009, he had a doctor's appointment and was told he had to call to check in every hour; 14) in May 2009, he found disciplinary action in his OPF that should have been rescinded and expunged; 15) on June 10, 11, and 12, 2009, he was called into the supervisor's office, yelled at, threatened with discipline, and denied union representation; 16) on July 7, 2009, his supervisor failed to check the fax machine to determine if his (sic) leave slip had been received and failed to approve his request for absence; 17) on July 15, 2009, he was denied a representative during an investigative interview; 18) on August 28, 2009, management refused to sign his forms; 19) on August 26, 2009, he was threatened because he took the wrong day off; 20) on August 28, 2009, his supervisor told him he was no longer a steward and could not file a grievance; 21) on September 1, 2009, management refused to meet with him on a grievance; 22) on October 1, 2009, he was told by his supervisor that his CA-17 was rejected; 23) on November 2, 2009, he wrote a letter to the postmaster, but his letter was never responded to; 24) on November 20, 2009, he received a 14-day suspension for unacceptable conduct/failure to follow instructions; 25) on November 24, 2009, one of his MSP scan points was inputed by his supervisor without his knowledge; 26) on December 28, 2009, his vehicle was given to another carrier; and 27) on February 6, 2010, he was promised lunch, but never received it.
At the conclusion of the investigation, the Agency provided Complainant 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 pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, the Agency dismissed claims 4, 9, 15, 17, 20-21, 24, and 26-27.1 Additionally, the Agency found that Complainant failed to establish a prima facie case of disparate treatment discrimination because he failed to identify similarly situated comparators who under similar circumstances were treated differently. The Agency further found that Complainant failed to present any other evidence that would support an inference of discrimination. The Agency also found that Complainant failed to establish that Agency officials took any of the alleged actions at issue because of his prior EEO activity. The Agency found that management articulated legitimate, non-discriminatory reasons for each of the allegations and there was nothing that showed by a preponderance of the evidence that the legitimate reasons given were pretext for unlawful discrimination. Finally, the Agency found that Complainant failed to show that he was subjected to unwelcome verbal or physical conduct relating to his prior EEO activity, or that the incidents were sufficiently severe and pervasive enough to constitute a hostile work environment. The Agency stated that Complainant offered nothing more than his subjective opinions and that as such, failed to establish that any of the alleged harassment was due to his protected class.
CONTENTIONS ON APPEAL
Neither Complainant nor the Agency has submitted any arguments on appeal.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
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 (Mar. 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.
We concur with the Agency's decision to dismiss claims 4, 9, 15, 17, 20-21, 24, and 26-27 as set forth in the Agency's final decision. Moreover, we find that Complainant has not established that the Agency's actions in this case were motivated by any discriminatory animus. Furthermore, we find, in light of the standards set forth in Harris, no persuasive evidence that the incidents, even if accurately described by Complainant, were sufficiently severe or pervasive to have altered the conditions of Complainant's employment and create an abusive working environment. For the most part, Complainant seeks to classify standard supervisory directives, professional disagreements, personality conflicts and management interactions as unlawful harassing behavior without establishing that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
To the extent the Complainant also alleges that he was subjected to disparate treatment in retaliation for his prior EEO activity, we find that Complainant has not established that he was subjected to any adverse employment action. Even taking Complainant's version of events as true as we must in this case, we find that Complainant provided no evidence that employees without prior EEO activity were treated any differently than he was under similar circumstances.
CONCLUSION
Based on a thorough review of the record, the contentions on appeal, including those not specifically addressed herein, and for the foregoing reasons, the Commission finds that Complainant has not established that he was discriminated against as alleged. Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
______9/28/12____________
Date
1 Although dismissing claims 21, 24, 26 and 27 as being moot, the Agency also addressed this claims on their merits and found that Complainant was not discriminated against or harassed with respect to these matters.
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0120110852
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110852