01972115
12-02-1999
William M. Casem, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
William M. Casem v. United States Postal Service
01972115
December 2, 1999
William M. Casem, )
Complainant, )
) Appeal No. 01972115
v. ) Agency No. 1F941107996
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (Filipino) 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.<1> Complainant claims he was harassed
and discriminated against as evidenced by the following incidents:
(1) prior to starting his shift, he was warned by his supervisor (S) not
to talk to his co-workers while performing his assignment (February 21,
1996);
(2) after requesting authorization from the Office of Workers Compensation
Programs (OWCP) for psychiatric treatment to resolve anger toward S,
he was placed in an off duty status without pay (March 22, 1996); and,
(3) his employment was terminated pursuant to a Notice of Removal for
Threatening a Postal Supervisor (April 11, 1996).
We accept the appeal under EEOC Order No. 960.001. For the reasons that
follow, the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that during the relevant time, complainant was
employed as a Mailhandler at the Priority Mail Annex at the agency's
postal facility in Burlingame, California. Complainant claims that S
constantly harassed him, singled him out because of his race, and also
retaliated against him for his prior EEO activity and complaint against
S.<2> In the first enumerated incident, complainant contends that S's
intention was to harass him, and that S admitted that he did not give the
other workers this warning. Regarding the second incident, complainant
contends that rather than responding to his request for psychiatric help,
the agency acted with discriminatory motivation when it misconstrued the
statement he submitted to OWCP as a threat against S, refused to allow him
to work, and placed him in an off-duty status pending an investigation.
Lastly, complainant again contends that S and the other responsible
management officials deliberately misconstrued his OWCP statement as a
threat toward S, and that his termination was unwarranted and the result
of discriminatory animus.
Complainant sought EEO counseling and, subsequently, filed a complaint on
May 8, 1996. At the conclusion of the investigation, the agency issued
its FAD. 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
more favorably under similar circumstances. The FAD also concluded that
complainant failed to establish a prima facie case of reprisal because
he presented no evidence of a nexus between his claim of discrimination
and his prior EEO complaint.
We will first address complainant's claim of race discrimination.
Based on the legal standard set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973), we find that although complainant has established that he
belongs to a protected group (Filipino), he has not shown that members of
other groups were treated more favorably. In fact, the record shows that
S treated many of his subordinates in much the same way that he treated
complainant, as evidence by statements from several of these co-workers
complaining of harsh treatment by S, often referencing identical incidents
to those raised by complainant. Moreover, we find that the record is
devoid of any indication that this treatment was exclusive to Filipinos.
Furthermore, complainant presents no evidence to suggest that his removal
was motivated by discriminatory racial animus, with the record instead
showing multiple instances of the agency terminating employees for making
threats against supervisors in a variety of contexts. Additionally,
we find that the record shows that complainant's removal was based on
the investigation of his statement/threat to OWCP that he might kill S
absent psychiatric intervention, and there is nothing to suggest racial
animus as a factor in the removal. Therefore, we find that appellant has
failed to establish a prima facie case of discrimination based on race.
We next address complainant claim of reprisal. Based on the legal
standard set forth in Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st
Cir. 1976), we find that although S was aware of complainant's prior EEO
activity, the evidence fails to establish a nexus between this activity
and the incidents which comprise complainant's claim of reprisal.
Regarding incident 1, the record shows that S warned complainant
about excessive talking because he had engaged in this conduct often.
In addressing incident 2, we find that complainant was initially placed
on emergency administrative leave, pending an investigation, after the
OWCP contacted the Postmaster about receiving the following statement
from complainant: "My supervisor, ....is continually harassing me.
I need your help because I have these feelings of wanting to kill him.
I would like to ask your authorization for me to go back and see my
psychiatrist. I hope these hostilities don't get out of hand." According
to S's testimony, complainant's leave category was subsequently changed to
emergency leave without pay when it was discovered that he was ineligible
to use administrative leave because of his lack of veteran status<3>.
As noted above, complainant argues that the agency deliberately
misconstrued this statement as a death threat and placed him off duty
as reprisal for his prior EEO activity. Contrary to complainant's
contention, we find that the agency's interpretation of this statement
and its response were reasonable. First, the statement was referred from
OWCP to the Postmaster because it, an impartial actor in this matter,
viewed the statement as a possible death threat against S, thereby lending
credence to the agency's interpretation. Second, our review of the record
discloses that complainant's treating psychiatrist submitted a letter to
the agency, dated November 28, 1995,<4> describing complainant's high
stress level and the possibility that he might injure S. We view this
letter as evidence further legitimatizing the agency's interpretation.
Third, we find that the agency acted responsibly when it placed
complainant in off duty status while conducting an investigation given
the immediacy of the "threat" communicated in the statement to OWCP.
Therefore, we conclude that complainant has failed to show a nexus
between these actions and his prior EEO activity.
Regarding complainant's removal (incident 3), the FAD found that the
agency's action was not motivated by reprisal because the investigation
showed that complainant made a written death threat against S.
We concur with this finding. Review of the "Assault & Threat Speciality
Report" shows that complainant was interviewed and admitted to having
feelings about killing S, but stated that he did not intend to make
a death threat against S, and was only describing the urgency of his
need for psychiatric help. The report notes that he relinquished his
personal revolver to the inspectors, apparently as a good will gesture.
However, the record also shows that during the course of his employment,
complainant had attended numerous training sessions conducted by the
agency regarding the seriousness of threats against supervisors, and
its zero tolerance policy towards this type of conduct. Accordingly, we
find that complainant had knowledge about the agency's policy regarding
threats towards supervisors, and should have realized that the OWCP would
alert the agency regarding his statement due to its startling content.
Even absent these assumptions, we find that given complainant's continued
"feelings" to kill S, as admitted to the investigators, the agency acted
appropriately in construing the OWCP statement as a death threat toward
S, and that his removal was fully consistent with the agency's policy.
Therefore, we conclude that appellant has failed to show a nexus between
the agency's decision to remove him from employment and his prior EEO
activity.
On appeal, complainant contends that the agency failed to consider his
claim of harassment, and submits various documents and numerous co-worker
statements which describe incidents alleged to be harassment by S against
complainant and his co-workers. The agency requests that we affirm its
FAD.
We agree with complainant that the agency should have treated his claim as
one of harassment due to a hostile work environment, and we CLARIFY the
FAD accordingly. Review of the record discloses several other incidents
of alleged harassment dating back to, and including, the incident giving
rise to the EEO complaint against S. We find that there is adequate
evidence of record, including complainant's statement on appeal, to
make this determination. See Cobb v. Department of the Treasury, EEOC
Request No. 05970007 (March 13, 1997). Specifically, the record shows
that complainant was involved in a conflict with S which escalated,
and complainant was issued a Letter of Warning for being disrespectful
to a supervisor. Thereafter, the record shows that complainant claims
that S: made him leave the work premises during his birthday party;
engaged in numerous discussions regarding work performance, especially
excessive talking; refused to accept medical documentation for leave
and charged him with AWOL (absence without leave) instead; and singled
him out and harassed him on a daily basis by over-working him and giving
him insufficient restroom breaks.
To establish a prima facie case of hostile environment harassment, a
complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class;
and (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. Jackson v. U.S. Postal Service, EEOC Appeal No. 01972555
(April 15, 1999) (citing Humphrey v. United States Postal Service, Appeal
No. 01965238 (October 16, 1998). Evidence of the general work atmosphere,
involving employees other than the complainant, also is relevant to
the issue of whether a hostile environment existed in violation of
Title VII. Jackson, supra. (citing Vinson v. Taylor, 753 F.2d 141, 146
(D.C. Cir. 1985), aff'd in relevant part and rev'd in part, Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986)). In determining that a
working environment is hostile, factors to consider are the frequency
of the alleged discriminatory conduct, its severity, whether it is
physically threatening or humiliating, and if it unreasonably interferes
with an employee's work performance. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems. Inc. at 3, 6. The
Supreme Court stated: "Conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's
purview." Harris, 510 U.S. at 22 (1993).
Based on the legal standard set forth above, the Commission is not
persuaded that complainant has established that he was subjected
to harassment based on race or reprisal. Rather, the record shows
that that S's actions were not "hostile," but rather consistent with
agency policy and legitimately carried out in his role as a supervisor.
For example: S asked complainant to leave the premises on his birthday
because he was not in work status that day, and should not have been
on the floor; S followed agency policy regarding complainant's leave
authorization and AWOL charge; and, S warned complainant about excessive
talking because he had engaged in this conduct often. Regarding the
Letter of Warning, the record shows that a witness to the incident
confirmed complainant's disrespectful conduct, consisting of yelling,
insults, and profanity toward S. As to the over-worked and inadequate
restroom breaks incidents, we note that many of S's subordinates voiced
identical complaints about S. Although complainant challenges each of
these reasons as untrue, he presents little evidence<5> to support this
contention, and, as noted above, the record overwhelmingly shows that
S treated complainant consistent with the same accusatory management
style he used with all of his subordinates.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED herein.
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).
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:
December 2, 1999
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: _________________________.
__________________________
(FOR OFO MERIT CASES) (INTERNAL CIRCULATION ONLY)
TO: CARLTON M. HADDEN
APPEAL NUMBER 01972115
AGENCY NUMBERS 1F941107996
REQUEST NUMBER
HEARING NUMBERS
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY): Mary Lynne Schwartz
11/29/99
(SUPERVISOR): Larry Newell
(DIVISION DIRECTOR):
DATA SHEET
Complainant(S): William M. Casem
AGENCY: USPS
DECISION: AFFIRMED AS CLARIFIED
STATUTE(S) ALLEGED: T7
BASIS(ES) ALLEGED: RO, OR
ISSUE(S) ALLEGED: D2, D3, C2, O1
WHERE DISCRIMINATION IS FOUND (ONLY):
(A) BASIS(ES) FOR FINDING:
(B) ISSUES IN FINDING:
TYPIST/DATE/DISKETTE ms6 | 11/9/99 | p:fy00
SPELL CHECK Yes
TEAM PROOFED
DATE
(CHECK ALL APPLICABLE CODES)
MERIT DECISION
MERIT DECISION (CONTINUED)
X 4A - MERITS DECISION
? 4B - OFO FOUND DISCRIMINATION
LIST BASIS CODES:____________________
LIST ISSUE CODES:____________________
X 4C - OFO FOUND NO DISCRIMINATION
? 4R - OFO FOUND SETTLEMENT BREACH
? 4S - OFO FOUND NO SETTLEMENT BREACH
? 4E - AGENCY FOUND DISCR./BREACH
X 4F - AGENCY FOUND NO DISCR./BREACH
X 4H - OFO AFFIRMED AGENCY
? 4I - OFO REVERSED AGENCY
? 4J - OFO MODIFIED AGENCY:
(NOTE): IF AFFIRMED IN PART AND REVERSED IN
PART, THEN (3L) CODE REQUIRED IF AT LEAST
ONE ISSUE IS REMANDED.
? 3L - OFO REMANDED PART OF AGENCY'S MERITS
DECISION. IF BREACH IS BASIS, USE OF (3L) ALSO
REQUIRES (4I) CODE.
? 4K - AJ FOUND DISCRIMINATION
? 4L - AJ FOUND NO DISCRIMINATION
? 4M - AJ MADE NO FINDING
? 4N - OFO AFFIRMED AJ
? 4O - OFO REVERSED AJ
? 4P - OFO MODIFIED AJ
? 3H - OFO DENIED ATTORNEYS FEES
? 3I - OFO APPROVED ATTORNEYS FEES
? 3J - OFO MODIFIED ATTORNEYS FEES
? 4Q - COMPLIANCE REQUIRED
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
2Complaint filed an EEO complaint against S concerning a Letter of
Warning he received in November 1995 as discipline for being disrespectful
toward S.
3Insofar as complainant does not challenge the reason for the change in
leave status, we will not further address it herein.
4The purpose of the letter was to notify the agency about complainant's
psychiatric treatment and to recommend a change in working conditions to
alleviate stress. We note that complainant has not claimed discrimination
based on a mental disability.
5We note that complainant presented co-worker statements that: he
did not engage in excessive talking on the day he allegedly treated
S disrespectfully; that S accused him of submitting false medical
documentation for his leave; and, that S ridiculed him for asking a
female co-worker for help. However, if taken in the context of all the
co-worker statements, and the record of evidence as a whole, we find that
these statements merely provide further examples of S's harsh management
style.