Romeo Gutierrez, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Area), Agency.

Equal Employment Opportunity CommissionOct 29, 1999
01977040 (E.E.O.C. Oct. 29, 1999)

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.