01977040
10-29-1999
Romeo Gutierrez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Area), Agency.
Romeo Gutierrez, )
Appellant, )
) Appeal No. 01977040
v. ) Agency No. 1F-957-0019-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Area), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful retaliation based on prior EEO activity and discrimination
based on national origin (Hispanic) and sex (male), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e,
et seq. Specifically, appellant alleges he was subjected to retaliatory
and discriminatory harassment by his supervisor (S1), the Manager of
Distribution Operations, when: (1) on February 14, 1996, S1 criticized
him for leaving loop mail in Operation 030; (2) on June 6, 1996, S1
blamed him for a plan failure; (3) on June 7, 1996, S1 showed him a
note S1 received from the Plant Manager which stated appellant was "not
so good"; (4) on June 11, 1996, when appellant and others commented on
light/limited duty clerks, S1 singled out appellant by asking only him
how he felt about the situation; (5) on September 26, 1996, he received
a memorandum stating operations errors; (6) on November 6, 1996, S1
showed him a document entitled "plan failure," and told him that he did
not want to hear his complaints, that appellant was not doing his job,
and that if it happened again, appellant would be sent back to his prior
duties; and (7) on December 12, 1996, S1 issued him a Letter of Warning
(LOW) charging him with irregular attendance. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED AS MODIFIED.
The record reveals that during the relevant time, appellant was employed
as a Supervisor, Distribution Operations, at the agency's West Sacramento
Processing and Distribution Center. Believing he was a victim of
harassment as referenced above, appellant sought EEO counseling and,
subsequently, filed a complaint on January 4, 1997. At the conclusion
of the investigation, appellant was advised of his right to request a
hearing before an Administrative Judge of the Equal Employment Opportunity
Commission, but did not respond. Accordingly, the agency proceeded to
issue its final decision pursuant to 29 C.F.R. �1614.110.
The FAD concluded that appellant failed to establish a prima facie
case of harassment based on national origin or sex because he did not
demonstrate that similarly situated employees not in his protected classes
were treated differently than he under similar circumstances. The FAD
also concluded that appellant failed to establish a prima facie case of
retaliation because there was insufficient evidence to establish a causal
nexus between appellant's prior EEO activity and the alleged harassment.
The FAD further concluded that appellant had also failed to establish a
prima facie case of harassment on any prohibited basis because the actions
at issue, in combination, did not constitute severe and pervasive conduct.
On appeal, appellant contends, as evidence of a causal nexus between
his June, 1996 EEO activity <1> and his receipt of an LOW in December,
1996, that there were other employees who used more sick leave than him
but did not receive an LOW, and that appellant himself had previously
used greater amounts of sick leave without receiving an LOW. The agency
requests that we affirm its FAD.
In order to establish a prima facie case of harassment, appellant
must demonstrate that: (1) he was subjected to harassment that was
sufficiently severe or pervasive to alter the terms and conditions of
employment by creating an abusive or hostile environment; and (2) the
harassment was based on his membership in a protected class, i.e. based
on an impermissible factor such as his national origin, sex, or prior
EEO activity. Cromar v. Department of Justice, EEOC Appeal No. 01951366
(January 23, 1998); Miller v. United States Postal Service, EEOC Request
No. 05941016 (June 2, 1995).
Applying this standard, we find that appellant has not established a
prima facie case of harassment on any basis, because the evidence does
not demonstrate that the conduct of which he complains was severe or
pervasive. While appellant has asserted that he was unfairly criticized
or blamed for various problems with mail processing or other operations,
the conduct at issue does not satisfy the severe or pervasive standard.
See Dalton v. United States Postal Service, EEOC Request No. 05940458
(March 9, 1995).
Moreover, appellant has failed to establish that S1's actions were
motivated by an impermissible factor. See, e.g., MacCue v. Department
of the Interior, EEOC Appeal No. 01944412 (February 1, 1996) (complainant
failed to establish prima facie case of harassment based on disputed work
criticisms, absent some evidence to support finding of discriminatory
motive). In particular, the record contains an LOW for irregular
attendance which was issued by S1 to another Supervisor, Distribution
Operations (white, female, no known prior EEO activity), on the same day
as the LOW issued to appellant, citing a similar number of absences over
a similar period of time. See Record of Investigation (ROI) Exhibit 4A
at 1 and Affidavit B. S1's issuance of a nearly identical LOW on the
same date to one of appellant's peers of a different national origin
and sex, who had no prior EEO activity, undermines appellant's claim
that his LOW was motivated by discriminatory or retaliatory animus.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the FAD is AFFIRMED AS
MODIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
10/29/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Specifically,
appellant asserts that on June 15, 1996, he
filed an EEO complaint against S1 alleging sex
discrimination arising out of S1's alleged romantic
affair with another supervisor.