01994989
02-07-2001
Guillermo Rose, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast Area), Agency.
Guillermo Rose v. United States Postal Service
01994989
February 7, 2001
.
Guillermo Rose,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01994989
Agency No. 4H-330-1175-96
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.<2> Complainant
alleged that he was discriminated against on the bases of race (Black),
national origin (Panamanian), disability (post traumatic stress syndrome),
and retaliation (prior EEO activity), when on November 29, 1995, he was
subjected to harassment and verbal abuse.
The record reveals that during the relevant time, complainant was employed
as a Custodian in the agency's Main Post Office, Fort Lauderdale, Florida.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on March 22, 1996.
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. While
complainant initially requested a hearing, he later withdrew that request.
Accordingly, the agency issued a FAD on September 14, 1998.
According to complainant, he was subjected to verbal abuse by his
supervisor (S1) when, on November 28, 1995, he was picking up trash
in the parking lot and S1 yelled at him to get inside. According to
complainant, he tried to explain why he was outside, but S1 did not care
to hear it and told him to �go the F___ inside.� Complainant further
affirmed that his supervisor also told him that if he did not like what
he asked him to do that he should put in a bid and get �the F___ out
of here before I kick your �a__.'� In addition, complainant asserts
that S1 told him previously that �the government hired a lot of Black
people just not to give them well-fare and that the custodian job is
a well-fare job for veterans.� Complainant also stated that S1 called
him stupid on occasion and threatened to kick his �a__.� Complainant
did not identify any witnesses who could corroborate his assertions.
S1 testified that when he asked the complainant to empty trash cans
on November 28, 1995, the complainant asked him why he was giving him
(complainant) a hard time, asking him to work, when they were both
Hispanic. S1 testified that when he told complainant he did not give
preferential treatment based on minority status, complainant became
loud on the workroom floor and was instructed to go to S1's office.
S1 further testified that he did not know complainant had a disability.
In addition, S1 testified that he first learned of complainant's prior
EEO activity when he sent complainant to his office that day.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of discrimination. In addition, the agency noted that
complainant failed to provide evidence that he suffered a personal loss
or harm with respect to a term, condition, or privilege of employment.
Specifically, the agency noted that complainant suffered no monetary loss,
or disciplinary treatment, and that there were no changes to complainant's
wages, hours or other conditions of employment. Lastly, the agency noted
that the record does not substantiate complainant's allegations since
the responsible management official denies complainant's allegations and
complainant has no other corroborating witness or documentary evidence
to support his claims.
Complainant raises no contentions on appeal. The agency has not provided
a statement in opposition to the appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases),
the Commission agrees with the agency that complainant failed to establish
a prima facie case of race, national origin, disability discrimination
or reprisal because complainant failed to offer any comparison employees
outside complainant's protected classes who, under similar circumstances,
were treated more favorably than complainant. In addition, complainant
provides no evidence which substantiates his claims. Accordingly,
complainant is unable to prove disparate treatment or harassment based
upon discriminatory motives, by a preponderance of the evidence.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, 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
February 7, 2001
__________________
Date
1The 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. These regulations
can be found on EEOC's website: www.eeoc.gov.
2 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.