01980734
04-07-2000
Robert Soltero, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert Soltero v. United States Postal Service
01980734
April 7, 2000
Robert Soltero, )
Complainant, )
)
v. ) Appeal No. 01980734
) Agency No. 4E-852-0018-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final
agency decision (FAD) concerning a complaint of unlawful employment
discrimination on the bases of national origin (Hispanic), age (Date of
Birth: August 23, 1950), 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.; and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq.<1> The agency issued the FAD on October
2, 1997. Accordingly, the appeal is timely (see, 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.402(a)), and is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency discriminated against the
complainant on the bases of national origin, age, and reprisal when
the agency:
removed the complainant from the Green Valley, Arizona facility;
gave complainant a temporary assignment at another facility in the area;
issued a proposed Letter of Warning in lieu of Time Off Suspension;
sent complainant to Human Resources Laboratory Workshop;
informed complainant that he would not receive "EVA" pay; and
informed complainant that he would not receive merit pay.
BACKGROUND
The record indicates that during the relevant time, the complainant
worked as the Officer-in-Charge at the Green Valley, Arizona facility.
Complainant alleged that the agency discriminated against him in the
above actions in 1996.
The above discrimination claims surround the agency's actions towards
complainant after an agency employee filed a worker's compensation
claim against the agency. Complainant was the former supervisor of the
employee, and she alleged that he created a hostile work environment
for her and other employees. The agency investigated her complaints.
During this investigation, complainant was removed from the Green
Valley facility and temporarily detailed to the Mountain View, Arizona
facility. At the conclusion of the investigation, the agency found that
complainant had indeed created a hostile environment at that facility.
As a result, the agency issued complainant a proposed Letter of Warning
for his inappropriate behavior and gave the complainant a chance to
grieve the proposed personnel action. After the complainant failed to
grieve the action, the agency issued a Letter of Warning in lieu of
Time Off Suspension. These letters were made a part of his official
personnel file. In addition, the agency ordered that the complainant
attend workshops for developing interpersonal skills. Finally, the agency
officials rated the complainant's performance unacceptable and denied him
"EVA" and merit pay.
Believing he was a victim of discrimination, complainant sought EEO
counseling, and subsequently, he filed a complaint on November 12, 1996.
At the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
ANALYSIS AND FINDINGS
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corporation v. Green. 411 U.S. 792 (1973). Loeb v. Textron, Inc.,
600 F.2d 1003 (1st Cir. 1979) (applying the McDonnell Douglas three-part
analysis to age discrimination cases). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. Id. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). In cases where the
complainant alleges age discrimination, the complainant must establish
that age was a determinative factor in the sense that "but for" his age,
the complainant would not have been subjected to the action at issue.
See Loeb, supra.
In order to establish a prima facie case of discrimination for a claim
of reprisal, complainant must show: (1) that he engaged in protected
activity; (2) that the alleged discriminating official was aware of the
protected activity; (3) that he was disadvantaged by an action of the
agency contemporaneously with or subsequent to such participation; and
(4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff'd, 545
F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the agency stated that it took these actions against complainant in
response to the worker's compensation claim investigation. In this
investigation, the agency learned that complainant created a hostile
work environment for numerous employees. Over the past years, several
employees had complained to management about complainant's actions.
Some agency officials had tried to address complainant's behavior
through informal means; however, these attempts were unsuccessful.
A few employees had allegedly suffered severe mental and emotional
problems as a direct result of this hostile environment. In order to
correct the hostile environment at the Green Valley facility, the agency
removed and detailed complainant to another facility.
In light of the complainant's service and performance at the agency,
the agency was prepared to issue a Letter of Warning in lieu of Time Off
Suspension as complainant's discipline. After it determined this choice
of discipline for complainant's improper conduct, the agency issued a
proposed Letter of Warning to give complainant a chance to grieve this
adverse action. Complainant did not grieve this letter. As a result,
the agency issued the Letter of Warning.
Also, the agency determined that complainant would benefit from training
classes to develop his interpersonal skills. The investigation revealed
that agency officials and employees did not believe complainant had
proper supervisory or sufficient people skills. The agency ordered
complainant to attend such a workshop to improve his skills.
At the conclusion of the investigation, the agency also determined that
complainant had engaged in improper behavior. The agency reported his
performance for that year as unacceptable. Performance evaluations are
used to determine applicable team and individual pay awards. Since the
agency found that the complainant created a hostile work environment and
had improper behavior, he was not eligible for the "EVA" or merit awards.
The Commission 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. In reaching this conclusion,
we note that the agency provided a detailed record of complainant's
improper behavior. The agency apparently acted pursuant to its legal
obligation to address the hostile work environment (and its causes)
at the Green Valley facility.
Therefore, after a careful review of the record, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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
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:
April 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ __________________________
Date Equal Employment Assistant
1On 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.