01980629
12-22-1999
Johnny N. Camou, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Johnny N. Camou, )
Complainant, )
)
v. ) Appeal No. 01980629
)
William J. Henderson, ) Agency No. 1E-853-1065-96
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
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) and reprisal (prior EEO activity),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges he was discriminated
against when: (1) he was physically and verbally assaulted by a
co-worker; and (2) the agency issued him a Notice of Proposed Removal
which was later reduced to a Letter of Warning in lieu of a seven-day
suspension. The Commission accepts this appeal in accordance with EEOC
Order No. 960.001. For the following reasons, we AFFIRM the agency's
decision as clarified herein.
The record reveals that during the relevant time, complainant was employed
as a Supervisor, Distribution Operations, at the agency's Phoenix
Processing and Distribution Center. Complainant alleged that on July
11, 1996, he had a confrontation with a fellow supervisor, Supervisor,
Transportation Operations (�STO�), which culminated into STO physically
assaulting him. Complainant reported the incident to his supervisor.
Apparently, STO also reported the incident claiming that complainant
physically assaulted him first. Both complainant and STO were sent
home pending an investigation. On August 7, 1996, the agency issued a
Notice of Proposed Removal to both complainant and STO. After further
investigation, the Senior Plant Manager reduced complainant's discipline
to a Letter of Warning in lieu of a seven-day suspension and reduced STO's
discipline to a Letter of Warning in lieu of a fourteen-day suspension.
The Senior Plant Manager stated that STO received greater discipline
because he was the aggressor in the incident. While noting that
complainant was not the aggressor, the Senior Plant Manager nevertheless
determined that complainant had not acted in a manner to abate the
situation, but instead engaged in a verbal exchange that served to
intensify the situation.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on September 26, 1996.
The agency accepted the complaint for processing, and at the conclusion
of the investigation, complainant was granted thirty days to request
either a hearing before an EEOC Administrative Judge or an immediate FAD.
After complainant requested a FAD, the agency issued its decision finding
no discrimination.
The FAD concluded that complainant failed to establish a prima facie
case of race or reprisal discrimination because he presented no evidence
that others outside his race were treated differently under similar
circumstances or that there was a causal connection between his prior
EEO activity and the agency's actions. The FAD nevertheless concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its actions, namely, that complainant's discipline resulted because
of his part in the altercation with STO. Finally, the FAD concluded
that complainant presented no evidence to demonstrate that the issued
discipline was a pretext for race or reprisal discrimination. On appeal,
complainant makes no new contentions, and the agency requests that we
affirm the FAD.
Initially, we note that the agency failed to address complainant's
retaliatory harassment claim. Complainant asserts that STO's actions
on July 11, 1996, constituted harassment and that the agency was aware
of STO's propensity toward inappropriate behavior. As the FAD failed to
provide an analysis of the harassment claim, the Commission will address
it here.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
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).
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.
Humphrey v. United States Postal Service, Appeal No. 01965238 (October
16, 1998); 29 C.F.R. � 1604.11. Evidence of the general work atmosphere,
involving employees other than the complainant, also is relevant to the
issue of whether a hostile environment existed in violation of Title VII.
Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant
part and rev'd in part, Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986).
Complainant contends that STO's physical assault on July 11, 1996,
constituted retaliatory harassment. In reviewing the evidence,
we find that complainant failed to establish a prima facie case of
retaliatory harassment. While complainant establishes that he engaged
in prior EEO activity and was subjected to unwelcome physical conduct,
he has failed to demonstrate that STO's actions were based his prior
EEO activity. Complainant asserts that STO's actions resulted because
he provided testimony against a friend of STO in a separate EEO matter.
We, however, find nothing in the record to link complainant's prior
EEO activity to his July 11, 1996 confrontation with STO. The record
indicates that the parties had a disagreement regarding the availability
of one of STO's drivers. This appears to be the crux of the altercation.
We find no credible evidence demonstrating that this disagreement stemmed
from any prior EEO incidents. As a result, we concluded that the record
fails to support a finding of retaliatory harassment.
As for complainant's disparate treatment claim, we find that complainant
failed to demonstrate that management's reasons for the discipline
were pretext for unlawful national origin or reprisal discrimination.
While complainant asserts that Hispanic employees were treated
less favorably by management, he provides no credible evidence,
other than his bare assertion, to support his statement. Likewise,
complainant fails to establish retaliation in this case. Even though
complainant provided unfavorable testimony against the agency in the
prior EEO matter, we find no credible evidence showing that the Senior
Plant Manager was motivated by retaliation in issuing the discipline.
The Senior Plant Manager credibly stated that, even though complainant
was not the aggressor in this matter, he received discipline because
his actions were unbecoming a supervisor. 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.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
December 22, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations1 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.