01974933
11-19-1999
Don N. Limin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Don N. Limin, )
Complainant, )
) Appeal No. 01974933
v. ) Agency No. 4F-940-1203-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> Complainant alleges
that the agency discriminated against him on the bases of race (Filipino),
national origin (Filipino) and in reprisal for prior EEO activity. The
Commission accepts the appeal in accordance with EEOC Order No. 960.001.
For the following reasons, we affirm the FAD as clarified herein.
The record reveals that during the relevant time, complainant worked
as a Carrier Technician at the agency's Bryant Street Annex in San
Francisco, California. Complainant filed four complaints which
the agency consolidated for processing. In support of his claim,
complainant identifies the following incidents: a supervisor made a
demeaning remark; he was not selected for instructor training; he was
blamed for the cancellation of the Employee Involvement program; he was
told to be in full uniform; he was moved while doing union business;
he was denied a PS Form 3996; he was told he had messed up a desk;
he was told he misspelled a name; comments were made that he did not
like; he was told about his break time and his uniform; he was given a
direct order while on steward time; he was threatened with discipline;
and he was informed about a sequencing error. At the conclusion of the
investigation, when complainant failed to timely request a hearing before
an EEOC Administrative Judge, the agency issued its final decision from
which complainant now appeals. On appeal, complainant contends that
the agency's investigation was unfair, biased, deceptive, dishonest,
undated and corrupt. The agency requests that we affirm the FAD.
The agency treated each of the incidents raised as a separate
claim of disparate treatment and dismissed most of the incidents
pursuant to 64 Fed. Reg 37644, 37656, (1999) (to be codified at
29 C.F.R. � 1614.107(a)(1)). Based on the standards set forth in
McDonnell Douglas v. Green, 411 U.S. 792 (1973), Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253-256 (1981), and
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the agency also
found that even if complainant had established a prima facie case of
discrimination on any basis, he failed to present credible evidence
that management's explanations for its actions were a pretext to mask
unlawful discrimination. We agree with the agency's conclusion since
there is no evidence to support a finding that any of the agency's
conduct was motivated by discriminatory animus toward complainant's
race, national origin or prior EEO activity. However, the agency did
not address complainant's claim of harassment. When confronted with
a claim such as this, the agency cannot, ignoring the pattern aspect
of the alleged incidents, define the claim in a piecemeal manner.
See Ferguson v. Department of Justice, EEOC Request No. 05970792 (March
30, 1999). Accordingly, we will review the merits of complainant's
claim of harassment.
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on his claim of race, national
origin or retaliatory based harassment, complainant must prove that: (1)
he was subjected to harassment that was sufficiently severe or pervasive
to alter the terms or conditions of employment and create an abusive or
hostile environment; and (2) the harassment was based on his membership
in a protected class. See EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6; Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
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). Additionally,
our guidelines state that: �In defining the hypothetical reasonable
person, the Commission has emphasized that the reasonable person standard
should consider the victim's perspective and not stereotyped notions
of acceptable behavior.� EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6.
Upon review, the Commission concludes that, considered both qualitatively
and quantitatively, the incidents raised by complainant are neither
sufficiently severe nor pervasive to create an objectively hostile
or abusive work environment. In reaching this conclusion, we find
that the incidents involved common workplace occurrences which were
not so offensive or abusive as to offend the general sensibility of a
reasonable individual. See Wolf v. United States Postal Service, EEOC
Appeal No. 01961559 (July 24, 1998). We also find that many of the
incidents about which complainant complains directly resulted from his
less than professional conduct in the office. Accordingly, we conclude
that the agency did not harass complainant.
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.
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:
November 19, 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:
_________________________
__________________________1 On 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.