01973689
01-01-2000
Ruben Ramirez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Areas), Agency.
Ruben Ramirez v. United States Postal Service
01973689
January 1, 2000
Ruben Ramirez, )
Complainant, )
) Appeal No. 01973689
v. ) Agency No. 1F-945-1061-94
) EEOC No. 370-96-X2690
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Pacific/Western Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of race (Hispanic) in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant
alleges he was discriminated against when: (1) on January 24, 1994,
his supervisor told him to put his personal items away before beginning
his tour; (2) in early January 1994, his supervisor prevented him from
speaking to another Hispanic employee; and (3) in early January 1994,
his supervisor made a racial statement to the effect that Black employees
should "stick together." The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier at the agency's Emeryville Post Office,
Oakland, California. Complainant alleged that his Supervisor (Black)
discriminated against him as referenced above. Specifically, he stated
that his supervisor selectively enforced the agency's policy that requires
employees to place personal items away prior to the start of their tour.
Furthermore, he alleged that his supervisor stopped him from saying
"good morning" to a fellow employee (Hispanic). Finally, complainant
averred that the supervisor made a racial remark to a fellow employee
(Black) to the effect that Black employees have to stick together.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on April 13, 1994. At
the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge. Prior to the hearing, complainant
and the agency entered into a settlement agreement, which provided
that complainant withdraw his EEO complaint. On December 16, 1994,
complainant alleged that the agency violated the settlement agreement
when his supervisor allegedly harassed an employee who was "willing to be
a witness" for complainant (and another employee) regarding his settled
EEO complaint. The agency denied complainant's request to reinstate his
complaint, and complainant appealed the decision to the Office of Federal
Operations (OFO). See, Ramirez v. United States Postal Service, EEOC
Appeal No. 01953703 (June 18, 1996). Therein, OFO determined that the
agency had not provided any consideration in the settlement agreement,
and ordered that complainant's complaint be reinstated from the point
processing ceased. Id. Thereafter, complainant withdrew his request
for a hearing before an EEOC administrative judge. On February 7, 1997,
the EEOC Administrative Judge remanded the case to the agency for a
final decision.
The FAD concluded that complainant failed to establish a prima facie case
of race discrimination because he presented no evidence that similarly
situated individuals not in his protected class were treated differently
under similar circumstances. Furthermore, the agency found that it
had articulated legitimate, nondiscriminatory reasons for its actions,
namely, that agency policy requires that employees place personal items
away before beginning their tour. Moreover, the agency found that
complainant was told not to say "good morning" to the fellow employee
because he was on the clock and she was not. Finally, the supervisor
denied making the racial statement as alleged by complainant.
On appeal, complainant contends that the agency failed to consider a
number of his arguments. He argues that his supervisor has engaged in
discrimination against Hispanics in the past. Furthermore, he argues
that his supervisor engages in conversations on and off the clock with
fellow employees, and selectively enforces the policy which required
employees to place personal items away before beginning their tour.
In response to complainant's appeal, the agency argues that no adverse
actions were taken by the supervisor. Therefore, the agency requests
that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corporation
v. Green, 411, U.S. 792 (1973), we find that complainant failed to
establish a prima facie case of race discrimination and therefore,
we discern no need to employ the burden shifting analysis in this
case. The Commission has consistently held that a remark or comment
unaccompanied by a concrete action is not a direct and personal
deprivation sufficient to render an individual aggrieved for purposes
of Title VII. Simon v. U.S.P.S., EEOC Request No. 05900866 (October 3,
1990). Thus, the Commission concludes that complainant's allegations,
which were unaccompanied by any concrete actions against complainant,
did not render complainant aggrieved for purposes of Title VII.
To the extent that complainant alleged that the supervisor's remarks
on the occasions at issue constituted harassment, the Commission
notes that unless the conduct is severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
See generally, Walker v. Ford Motor Co., 684 F. 2d 1355 (11th Cir. 1982).
Accordingly, we find that complainant's alleged incidents do not
constitute race discrimination or harassment.
Therefore, we find that complainant has not proven, by a preponderance
of the evidence, that the agency discriminated against him as alleged.
Accordingly, the Equal Employment Opportunity Commission AFFIRMS the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
January 1, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
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.