Gregorio Ramirez, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionDec 5, 2012
0120122704 (E.E.O.C. Dec. 5, 2012)

0120122704

12-05-2012

Gregorio Ramirez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.


Gregorio Ramirez,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120122704

Agency No. 1G-761-0002-12

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 17, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Maintenance Mechanic, PS-07, at the Agency's Fort Worth, Texas Processing and Distribution Center (P&DC).

On November 28, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (Hispanic), disability (post traumatic stress disorder), and in reprisal for prior protected activity when:

1. on September 30, 2011, after telling management of the continued harassment by a co-worker, management failed to take appropriate action;

2. prior to October 2011, he was denied Reasonable Accommodation; and

3. on October 7, 2011, he became aware his name was not included on the "promotion list," though he passed a test.

After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.

On May 17, 2012, the Agency issued the instant final decision, finding no discrimination. The Agency found that assuming, for the sake of argument only, that Complainant established a prima facie case of race, disability and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.1

Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, disability and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.

Regarding claim 1, Complainant alleged that on September 23, 28 and 30, 2011 and October 5, 2011, a named co-worker intentionally intimidated him by using racial slurs. The record reflects that the co-worker does not work at the Fort Worth P&DC, and that he only stops by the P&DC to pick up parts. The record further reflects during her investigation of Complainant's allegation, Complainant's supervisor spoke with the Manager Field Maintenance Operations who informed her that the co-worker had been to the P&DC to pick up parts but did not have any interaction with Complainant.

The Manager Field Maintenance Operations stated that some time during September 2011 and October 2011, the co-worker was notified that "he had parts ready for pick up in the maintenance parts room located at the Fort Worth P&DC. [Co-worker] was at the parts room to retrieve parts he had ordered; this is a function of his maintenance position as a Building Equipment Mechanic. I questioned [co-worker] as to his contact with [Complainant] while at the Fort Worth P&DC. [Co-worker] stated that he had no contact with [Complainant]. One employee seeing another employee in performance of their assigned duties with no verbal or physical contact was not harassment."

The Manager, Maintenance (Manager) stated that Complainant never approached him about the co-worker, and that the co-worker "did not work in this facility during those days mentioned. He may have been here to pick up parts but other than that, his bid did not require him to work at the plant."

Regarding claim 2, the Manager stated that during the relevant time Complainant did not request reasonable accommodation. Specifically, the Manager stated that Complainant "did not present any documentation for any restriction. As far as I know he has been on full duty and was never on any restriction." The Manager further stated that Complainant refused to meet with the District Reasonable Accommodation Committee. The Manager stated that Complainant "claimed he was able to do his job and did not need any special accommodation."

Moreover, the Manager stated that Complainant did not want to work with the co-worker and the co-worker "did not want to work with [Complainant]. Not wanting to work with another person does not automatically constitute a request for accommodation."

Regarding claim 3, the Manager stated that no management official, including the Postmaster, can arbitrarily exclude an eligible employee from being placed on the Promotion Eligibility Register "without violating the Collective Bargaining Agreement. Everything is done based on the Maintenance Section System. Any employee that has an eligible rating no matter how low the score is entitled to be on the register."

The Manager stated that during the relevant period, there was no record showing that Complainant was eligible to be placed on the Promotion Eligibility Register. Specifically, the Manager stated that Complainant "never presented his eligibility scores and without it, there is no way to figure out what ranking he should be placed on the Promotion Eligibility Register. The local APWU will never let any eligible employee out of the Promotion Eligibility Register as it is against the Collective Bargaining Agreement to exclude any eligible employee from the list."

Complainant, on appeal, argues that based on the "incorrigible and illegal" harassment he was forced to retired. As a remedy, Complainant requested remuneration "for the difference of his actual pay he would have received had the actionable harassment and retaliation not occurred, and the amount of pay he is receiving from OPM FERS disability retirement system each month;" compensatory damages, benefits, back pay, and reinstatement.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of his race, disability and prior protected activity.

Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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 77960, Washington, DC 20013. 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 (S0610)

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

December 5, 2012

__________________

Date

1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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