William M. Casem, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionDec 2, 1999
01972115 (E.E.O.C. Dec. 2, 1999)

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.