01A05161
05-02-2001
Mario M. Altomare Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny Area) Agency.
Mario M. Altomare Jr. v. United States Postal Service
01A05161
May 2, 2001
.
Mario M. Altomare Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny Area)
Agency.
Appeal No. 01A05161
Agency No. 1-C-195-0012-97
Hearing No. 170-AO-8036X
DECISION
Complainant timely initiated an appeal from the agency's final Order
concerning his equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
discriminated against on the bases of race (White) and National Origin
(Italian American) when, between June 1996 and May 1997, the agency
created a hostile work environment. Specifically, complainant alleged
the following incidents occurred:
(1) complainant's supervisor (RO 1: African American) constantly
watched complainant and invaded his personal space, in particular
when complainant was conversing with other employees, and supervised
complainant more closely than other employees;
on two occasions, RO 1 told complainant that his breath stank of garlic,
and on one occasion, after complainant had offered his opinion on a
certain matter, stated sarcastically �what does your opinion and fifty
cents get you?�;
RO 1 allowed another employee (CW 1), who was a friend of hers, to
repeatedly let complainant's feed table run out of mail, slam mail onto
complainant's table, and kick the back of complainant's letter sorting
machine (LSM);
RO 1 singled out complainant by not telling him about changes in the
four-person rotation on the LSM;
on December 24, 1996, RO 1 permitted other employees to leave early
but denied complainant's request to leave early;
on two occasions in February 1997, RO 1 got very close to him and
lectured complainant on his behavior, told him he was insubordinate,
and that she was considering taking disciplinary action against him;
on March 5, 1997, while complainant was loading mail onto the feed table,
he had to ask RO 1 to move several times while she carried on a social
conversation with another employee; and
complainant generally alleges that RO 1 often carried on social
conversations with co-workers who were her friends (African American)
and treated them more favorably than complainant.
For the following reasons, the Commission AFFIRMS the agency's final
Order.
BACKGROUND
The record reveals that complainant, a distribution clerk at the agency's
Southeastern Processing and Distribution Center in Devon, Pennsylvania,
filed a formal EEO complaint with the agency on May 13, 1997, alleging
that the agency had discriminated against him as referenced above.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file. In a final agency decision (FAD) dated
August 13, 1997, the agency dismissed complainant's claim for failure to
state a claim. On December 18, 1998, the Commission reversed the FAD
and remanded the claim to the agency for adjudication on the merits,
finding that complainant had stated a cognizable claim of harassment.
Following a hearing, the AJ issued a decision on April 5, 2000, finding
no discrimination.
The AJ concluded that the evidence did not support complainant's
allegations that the actions of RO 1 were motivated by animus towards
complainant's race or national origin, there was no evidence of race or
national origin discrimination, and no evidence that similarly situated
employees not in complainant's protected class were treated differently
under similar circumstances. The AJ further concluded that, assuming
arguendo that the behavior of RO 1 was related to complainant's race or
national origin, the agency articulated legitimate, nondiscriminatory
reasons for its actions. The agency's final Order implemented the
AJ's decision.
On appeal, complainant contends that the AJ did not provide him with
a fair hearing. Complainant asserts that, just before the hearing,
the AJ did not allow him to present testimony from two of his witnesses
and that such a last minute change impaired his ability to present his
case effectively. In addition, complainant stated that the agency did
not cooperate in the pre-hearing discovery process, by not forwarding
information about recent disciplinary actions taken by the agency
against RO 1, and the AJ refused complainant's efforts to bring up
the agency's lack of cooperation. Complainant further contends that
the AJ incorrectly restricted discussion of the issues to the issue of
�verification� or whether or not the dispute between RO 1 and complainant
stemmed from a policy change at the agency that required all employees
in complainant's position to verify overnight mail to ensure complete
accuracy in the delivery of the mail. Complainant maintains that by
focusing on the issue of �verification� he was denied the opportunity
to present witnesses on other issues. Finally, complainant contends
that the AJ cut short his testimony and that he had planned to testify
that other supervisors were less hostile and intimidating. The agency
requests that we affirm its final Order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. However, we take this
opportunity to clarify the AJ's decision. We note that in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986), that harassment is actionable if it is sufficiently severe
or pervasive that it results in an alteration of the conditions of
the complainant's employment. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.
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. 29 C.F.R. � 1604.11.
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering, inter
alia, the nature and frequency of offensive encounters and the span of
time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);
EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050,
No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request
No. 05970077 (March 13, 1997). However, as noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the 'terms and
conditions of employment." The Court noted that such conduct �must be
both objectively and subjectively offensive, [such] that a reasonable
person would find [the work environment to be]
hostile or abusive, and . . . that the victim in fact did perceive to
be so.� Id. at 2283. See also Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S.
(2001) (No. 00-866 April 23, 2001).
We find that complainant has failed to meet his burden of presenting
sufficient evidence that he was subjected to harassment. We find that
the occasional comments by RO 1 were no more than off-hand or isolated
comments and that, when considered together with the incidents of
invasion of complainant's personal space, the fact that RO 1 had casual
conversations with African American co-workers but not with complainant,
and the fact that complainant had to ask RO 1 to move while she conversed
with co-workers, we find that these actions were not severe or pervasive
enough to rise to the level of harassment. As regards the denial of
complainant's request to leave early on December 24, 1996, we note that
RO 1 gave legitimate, nondiscriminatory reasons for her actions with
her unrebutted testimony that such early leave on Christmas Eve was
granted on a first-come, first served basis and that complainant had
not submitted his request early enough. We therefore discern no basis
to disturb the AJ's decision.
As regards complainant's arguments on appeal, we find that the AJ did
not abuse her discretion. We note that under 29 C.F.R. � 1614.109(d),
both parties are entitled to reasonable development of evidence on
matters relevant to the issues raised in the complaint, but the AJ
is authorized to limit the scope of discovery. In addition, under �
1614.109(c), the AJ is authorized to limit the attendance of witnesses
to persons determined by the AJ to have direct knowledge relating to
the complaint, and is further authorized to exclude irrelevant evidence.
Complainant has not shown that either the testimony his witnesses would
have provided, the denied discovery motion, or his own planned testimony
that other supervisors were less hostile and intimidating, were relevant
or related to his complaint.
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 agency's
final Order.
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 2, 2001
__________________
Date