01995243
05-03-2001
Ernest C. Ortega, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (USPS Headquarters) Agency.
Ernest C. Ortega v. United States Postal Service
01995243
May 03, 2001
.
Ernest C. Ortega,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(USPS Headquarters)
Agency.
Appeal No. 01995243
Agency No. H0-0065-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that he was discriminated against on the bases of his
disability (an unspecified mental condition), sex (male), national origin
(Hispanic), and in retaliation for prior EEO activity as an EEO counselor
and investigator. In its FAD, the agency stated that complainant raised
twenty-one (21) issues in his formal complaint. The Commission declines
to repeat all 21 herein, but will summarize them to the extent necessary
to resolve this appeal.
The record reveals that during the relevant time, complainant was employed
as an EEO Counselor/Investigator at the agency's Colorado/Wyoming District
Office. Believing he was a victim of discrimination, complainant sought
EEO counseling and subsequently filed a formal complaint on October 6,
1998. At the conclusion of the investigation, complainant was informed
of his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. By letter dated
May 6, 1999, complainant requested that the agency issue a final decision.
In its FAD, the agency concluded, as to the matters identified as
issues 1-10, that complainant failed to timely contact the EEO counselor
within the prescribed 45-day time limit. As to the matters identified as
issues 11 and 12, the agency dismissed both for failure to state a claim.
With respect to the matters identified as issues 13-21, the agency reached
the merits of the claims, concluding that complainant failed to establish
a prima facie case of discrimination.
On appeal, complainant submitted no brief, only summarily stating in a
letter dated May 26, 1999 that he wished to file an appeal. The agency
responded to complainant's appeal, requesting that we affirm its FAD.
In so doing, the agency maintains that complainant's claims were
untimely, and that a legitimate, non-discriminatory reason was provided
for management to return complainant's work to him for revisions, that
reason being numerous spelling and grammatical errors.
ANALYSIS AND FINDINGS
First we will address the issue of fragmentation of the claims. Because
complainant is alleging that he was subjected to a continuing hostile
work environment, it is not appropriate to consider the claims separately
from one another. The agency addressed the issue of fragmentation in
its FAD, stating:
the complainant has presented a series of 10 isolated incidences
related to his inappropriate conduct and/or performance as EEO
Counselor/Investigator over a period of one year and two months.
He failed to establish the necessary nexus between the incident he
cited as Issue #1 (no longer being assigned certain cases) and the other
matters he cited in his complaint. Likewise, he failed to establish a
nexus between the matters related by him as ISSUES 1 - 10 and the other
timely matters he presented in the case at bar.
We disagree with the agency's conclusion that issues 1-10 are not related
to the remaining issues. Each of the identified issues alleges incidents
comprising the same claim of hostile work environment harassment.<2>
Instead of treating these events as incidents comprising the claim of
harassment, however, the agency analyzed them individually. Thus,
we find that the agency improperly treated the incidents raised in
complainant's complaint in a piecemeal manner. See Meaney v. Department
of the Treasury, EEOC Request No. 05940169 (November 3, 1994) (an agency
should not ignore the "pattern aspect" of a complainant's claims and
define the issues in a piecemeal manner where an analogous theme unites
them). Consequently, when the incidents in the complaint are viewed
as an alleged pattern of discriminatory conduct, they state a claim of
harassment and the agency's dismissal of claims 1-10 for untimeliness
and 11-12 for failure to state a claim was improper.
The procedural dismissals notwithstanding, the agency conducted an
investigation. The record of investigation is sufficient as it stands
to review the entire complaint on the merits. Given that, we turn to
the issue of establishing a claim of harassment.
In order to prevail on a claim of harassment complainant must demonstrate,
inter alia, that: (1) he was subjected to harassment that was sufficiently
severe or pervasive to alter the conditions of employment and create 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 race, national origin, sex, age, disability or reprisal.
Valdez v. United States Postal Service, Appeal No. 01A00196 (May 11,
2000); Cromar v. Department of Justice, EEOC Appeal No. 01951366
(January 23, 1998); see also Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). In determining whether or not
a hostile work environment violative of Title VII has been created,
the Commission requires that �...the challenged conduct must not only
be sufficiently severe or pervasive objectively to offend a reasonable
person, but also must be subjectively perceived as abusive by the
[complainant].� Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 7, EEOC Notice No. 915.002 (March 8, 1994).
The Supreme Court has 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 v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993). Additionally, the Commission has previously noted: �In defining
the hypothetical reasonable person, . . . the reasonable person standard
should consider the victim's perspective and not stereotyped notions of
acceptable behavior.� Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 6, EEOC Notice No. 915.002 (March 8, 1994). In evaluating
whether the conduct at issue was sufficiently severe or pervasive to
constitute a hostile work environment, the Commission has noted that �[a]
'hostile environment' claim generally requires a showing of a pattern
of offensive conduct.� See EEOC Policy Guidance on Current Issues of
Sexual Harassment, N-915-050, No. 137 (March 19, 1990).
Complainant alleges that between August of 1996 and October of 1997, he
was subjected to harassment from his supervisor (S). Complainant cites
incidents such as being admonished by S in a loud and threatening manner
on several occasions, being taken off of cases he was previously assigned
to investigate, being placed on a performance improvement plan, being
accused by S of improper behavior in carrying out his investigations,
being asked to continually revise his reports, and having his reports
changed or altered by other EEO employees at the direction of S without
complainant's knowledge or consent. Even assuming arguendo that these
events took place as complainant states and rose to the level of creating
an environment sufficiently severe or pervasive that a reasonable person
would find it hostile or abusive, complainant nonetheless has failed to
establish a discriminatory or retaliatory motive by a preponderance of
the evidence.
Specifically, there is no evidence that S behaved the way he allegedly
did because of complainant's sex, national origin or disability.<3>
Moreover, as to retaliation, complainant failed to establish that there
was a causal link between his protected activity, whether as an EEO
counselor/investigator or as a witness for three individuals who filed
sexual harassment claims against the agency, and the actions of S.
In reaching this conclusion, we note that complainant offered only
bare statements of events that transpired over the time in question.
These statements do not offer any evidence of a possible motive by
S, discriminatory or otherwise. The agency, however, does offer the
affidavit of S, which offers legitimate, non-discriminatory reasons for
the actions taken by S. For example, with respect to the issue of being
taken off a case to which he had previously been assigned, S attests
that he did so to defuse a situation between the agency and complainant,
where complainant was perceived to be biased. In regard to the incidents
of returning complainant's reports for numerous revisions, the agency
points to the exhibits submitted by complainant for the instant appeal.
The agency contends that these exhibits contain numerous errors and
stand alone as evidence of why multiple revisions were required.
Further, complainant himself stated, and S restated, that other
counselor/investigators were often required to revise their reports.
Complainant has offered no evidence to rebut the statements by S,
and has offered no evidence that could support the contention that
any action taken by S was motivated by his sex, disability, national
origin or prior protected activity. Thus, complainant has failed to
establish by a preponderance of the evidence that he was subjected to
discriminatory harassment.
Accordingly, based on the foregoing analysis and after a careful review
of the record, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 03, 2001
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 The Commission notes that complainant categorized four of his issues
as incidents of disparate treatment. We find that the issues are more
appropriately analyzed as part of complainant's harassment claim.
3 We note that in analyzing complainant's claim of disability-based
harassment, the FAD did not address the threshold issue of whether or
not complainant is an individual with a disability within the meaning
of the Rehabilitation Act. In deciding the instant appeal, we do not
reach the issue, because we find that even assuming arguendo complainant
is an individual with a disability, he has not demonstrated that, more
likely than not, the alleged harassment was motivated by his disability
or any other protected basis.