01991294
12-20-2001
Stanley J. Vazquez Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Stanley J. Vazquez v. United States Postal Service
01991294
12/20/01
.
Stanley J. Vazquez
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01991294
Agency Nos. 4G-752-1031-96, et al.
Hearing No. 310-97-5479X, et al.
DECISION
Stanley J. Vazquez (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of national origin (Hispanic) disability
(cervical lumbar sprain, shoulder and knee injury), and reprisal (prior
EEO activity), in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq. The appeal is accepted
in accordance with 29 C.F.R. �1614.405. For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUES PRESENTED
The issues on appeal are whether complainant was subjected to
discrimination on the aforementioned bases when:
on September 26 1995, he was verbally abused by the Supervisor Customer
Service;
on or about October 19, 20, and 21, 1995, he was harassed and denied
work privileges during a route inspection by the Station Manager;
on July 6, 11, 12, 15, and 17, 1996, he was harassed about his work
performance and denied a route inspection;<1> and
on November 14, 1996, he was denied leave to attend a medical
appointment.<2>
BACKGROUND
The record reveals that at the time complainant initiated the instant
complaint, he was employed as a Regular City Carrier at the Richardson
Post Office in Richardson, Texas. In Issue #1, complainant alleged that
the agency's management made false statements to discredit him and make
it appear that he is a bad employee. Complainant adds that this effort
to discredit him was undertaken so that disciplinary actions could be
taken against him in the future. As an example of the agency's effort to
discredit him, complainant states that the Supervisor of Customer Service
called him an �a-s hole� in front of witnesses. Complainant also states
that the managers solicited statements from his customers and falsely
accused him of taking long lunches and being aggressive toward customers.
With respect to issue #2, complainant alleged that the Station Manager
(hereafter SM) badgered him during route inspections in October of 1995,
by setting up his own guidelines for a route inspection, by imposing
unrealistic street inspection times and by disallowing credited items
during the route inspection. As a result of the SM's imposition of his
own rules during the route inspection, complainant alleged that he failed
the office time segment of the inspection. Complainant also alleged
that the SM called him a worthless Carrier during the route inspection
and refused to provide him with Union representation during the check.
Moreover, complainant stated that the SM would not allow him to complete
a vehicle repair tag during the evaluation.
With respect to issue #3, complainant alleged that he was subjected to
ongoing harassment and forced to work beyond his physical limitations.
According to complainant, he was also subjected to an inordinate amount
of scrutiny and he was asked to do mail manipulations that created
unsafe working conditions. As such, complainant states that the agency
is treating him as if he is a fully fit Carrier, when in fact he is
recovering from an on-the-job injury. Further, complainant states that
the agency has failed to temper its expectations and provide him with
the necessary accommodation to perform his job.
Addressing Issue #4, complainant alleged that the agency officials were
deliberately sabotaging his recovery process from an on-the-job injury
by delaying or refusing his request for leave to go to his medical
appointments. Complainant stated that the agency's denial of his leave
request was just another form of discriminatory harassment. He noted
that he was treated disparately in this matter because an employee outside
of his protected group was allowed to go to his medical appointment.
At the conclusion of the EEO investigation, the agency informed
complainant of his right to request a hearing or a final agency decision.
Complainant requested a hearing with an Administrative Judge (AJ)
of the Equal Employment Opportunity Commission (EEOC). In a bench
decision dated July 2, 1998, 1998, the AJ found, with respect to Issue
#1, that complainant did not establish a prima facie case of national
origin or reprisal discrimination because it is questionable whether
the Supervisor of Customer Service called complainant an a-s hole.
The AJ added that even if true, this comment alone without any concrete
action is not an adverse action under the governing EEOC regulations.
(RD p. 9) With respect to Issue #2, the AJ found that complainant failed
to establish a prima facie case of reprisal or national origin because he
did not show where he was denied any privileges as a result of the route
inspection that took place in October 1995. Moreover, the AJ found that
complainant did not prove where the Supervisor of Customer Service,
who was the named management official in this allegation, was involved
in the route check. (RD p. 10)
Addressing Issue #3, the AJ found that complainant failed to establish a
prima facie case of harassment, because all of his examples of harassing
actions related to verbal comments or management's proposals to take
future disciplinary action. With respect to the route inspection portion
of this issue, the AJ found that complainant established a prima facie
case of national origin discrimination but that he failed to show that
the reason articulated by the agency for its action was a pretext for
discrimination. In this regard, the AJ noted that the agency officials
testified that complainant's performance deficiencies had to be corrected
before a route check could be authorized.
With respect to Issue #4, the AJ found that complainant failed to
establish a prima facie case of reprisal discrimination, because he
did not show that the relief supervisor knew of his prior EEO activity
and he also failed to establish a prima facie case of national origin
discrimination because he failed to show where he was treated differently
from employees outside of his protected group in relation to denial of
his leave request. In this regard, the AJ noted the Relief Supervisor's
testimony that she did not receive complainant's leave request until
the morning of November 14, 1996, and she attempted, but failed to
find someone to cover complainant's route. In light of her shortage
of manpower and the short notice she was given of complainant's leave
request, the Relief Supervisor testified that she denied the request.
According to the Relief Supervisor, her action was consistent with agency
policy. With respect to the comparative employees cited by complainant,
the AJ found that they were not similarly situated because they were
already out on sick leave and they called in for additional leave and
submitted the necessary leave slip when they returned to work.
With respect to all of the aforementioned issues, the AJ found that
complainant was a qualified individual with a disability. Despite this
finding, the AJ found that complainant failed to establish a prima facie
case because he was reasonably accommodated by the agency and he did
not show where he was treated differently from anyone outside of his
protected group.
In a FAD dated October 20, 1998, the agency concurred with the AJ's
finding that complainant was not subjected to discriminatory and
retaliatory harassment with respect to the challenged actions.
CONTENTIONS ON APPEAL
In his appeal statement, complainant contends that the agency had a lot of
available manhours on November 14, 1996, and it should have allowed him
to attend his medical appointment. In this regard, complainant contends
that it was a common practice on the job that employees did not complete
leave slips for doctors appointments because the managers wanted to keep
manhours lost goals to a minimum so that they could qualify for bonuses.
Complainant reiterates his position that the agency knew beforehand of
his medical appointment, but it forced him to work that day to retaliate
against him because he is a disabled employee who incurred an on-the-job
injury and it also wanted to save $60.00 in overtime cost. Complainant
also requested that an alleged assault by the Postmaster that took place
on July 15, 1996, be made a part of this complaint. The remainder of
complainant's appeal is mainly a reiteration of arguments raised earlier
in the complaint process.
The agency did not submit any new contentions in response to complainant's
appeal.
ANALYSIS AND FINDINGS
As an initial matter, we note that by adopting the AJ's recommended
decision as its final decision, the agency conceded that complainant is a
qualified individual with a disability as defined by the Rehabilitation
Act. Therefore, this issue is not before the Commission on appeal and
need not be further discussed or addressed. See Williams v. United
States Postal Service, EEOC Appeal No. 01973755 (September 10, 2000).
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).
In the case at hand, we find that the AJ acted properly when she limited
this case to the three consolidated complaints. The assault matter formed
the basis of a separate complaint (Agency No. 4-G-752-1312-96), which was
not in front of the AJ at the time. Further, the Commission finds that
complainant was not subjected to harassment in relation to the incidents
raised in Issues #1, #2, #3, and #4 above. Specifically, we note that
judicial courts have held that in order for harassment to be considered
discriminatory, it must be pervasive or severe enough to significantly
and adversely alter the conditions of the victim's employment and create
an abusive working environment. See Harris v. Forklift Systems Inc.,
114 S.Ct. 367 (1993); see also, Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Consistent with the Commission's policy, we find
that taken individually or together, the allegations of harassment raised
by complainant in his complaint were not severe enough to unreasonably
interfere with his work performance.
Moreover, the Commission finds that to the extent that complainant
established a prima facie case of discrimination, he failed to show
by a preponderance of the evidence that the reasons articulated
by the agency for its action were a pretext for discrimination.
Except for the previously mentioned assertions that he was subjected
to disparate treatment, complainant presented no evidence to show that
the reasons articulated by the agency for its actions were a pretext for
discrimination. In relation to Issue #4, the Commission notes that unless
complainant can establish that Relief Supervisor's action was prompted by
discriminatory animus, we will not second guess her conclusion that she
had insufficient coverage on November 14, 1996, to approve complainant
request for leave. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259 (1981); see also Dorothy Schaeffer v. Department of
Transportation, EEOC Appeal No. 01A10518 (February 14, 2001).
CONCLUSION
Therefore, 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. Except for the harmless
errors noted in footnotes 2 and 3 above, we discern no basis to disturb
the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
12/20/01
__________________
Date
1 In her recommended decision the AJ initially identified the dates that
complainant was allegedly harassed and denied a route inspection as
occurring in December 1996. Later in her decision, the AJ correctly
identified these incidents as taking place in July. See Report of
investigation pp. 4, 73, & 77. See also recommended decision (RD) p. 18.
2 Although the AJ recited the facts and drew legal conclusions related
to Issue #4, she neglected to identify it as a separate issue in this
consolidated case. Although the agency identified this matter as an
issue in the case designated by Agency No. 4G-752-0084-97, it simply
adopted the RD of the AJ without pointing out this oversight.