01983681
12-08-1999
Stanley S. Yang, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Stanley S. Yang, )
Complainant, )
) Appeal No. 01983681
v. ) Agency No. 1F941001297
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of national origin (Chinese from Burma), in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> Complainant claims that he was discriminated
against and subjected to harassment as evidenced by the following
incidents: (1) his supervisor (S) singled him out and continuously
monitored his lunch and break times; and (2) he received a seven day
suspension on September 21, 1996, for extending break times and being
missing from his work station on numerous occasions during non-break
times. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission AFFIRMS the FAD as CLARIFIED.
The record reveals that during the relevant time, complainant was employed
as an Electronics Technician at the agency's San Francisco Processing
& Distribution Center. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint.
At the conclusion of the investigation, the agency issued its FAD
finding no discrimination. Complainant now appeals this determination,
and requests that S be investigated for abuse of his authority to the
detriment of the efficient operation of the agency.<2>
Based on the standards set forth in McDonnell Douglas v. Green,
411 U.S. 792 (1973), the agency found that even if complainant
had established a prima facie of national origin discrimination in
this matter, he failed to present credible evidence that management's
explanations for its actions were a pretext for unlawful discrimination.
We agree with the agency's conclusion because the record is devoid of
any evidence to support a finding that S was motivated by discriminatory
animus toward complainant's national origin. However, the FAD failed to
address complainant's claim of harassment, which was clearly raised at
the counseling stage, in his complaint, and during the investigation of
the complaint. Accordingly, we will review the merits of complainant's
harassment claim and we clarify the FAD to include our finding on
this issue.
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; (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. See generally
Jackson v. U.S. Postal Service, EEOC Appeal No. 01972555 (April 15, 1999)
(citing Humphrey v. United States Postal Service, Appeal No. 01965238
(October 16, 1998). 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. Jackson,
supra. (citing 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)). 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); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance
on Harris v. Forklift Systems. Inc. at 3, 6. 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).
Based on the legal standard set forth above, the Commission is not
persuaded that the incidents raised by complainant are sufficiently
severe or pervasive as to create an objectively hostile work environment.
Rather, the record shows that S's actions were not �hostile,� but rather
consistent with agency policy and legitimately carried out in his role
as a supervisor. The record is clear that complainant violated agency
rules when he extended his break times and was missing from his work
station when on duty, and S's direction to him to return to his work
station cannot be considered �hostile� under these circumstances.
See Wolf v. U.S. Postal Service, EEOC Appeal No. 01961559 (July 24,
1998). Moreover, the record also shows that S provided complainant
with counseling regarding this problem, but that he was argumentative and
refused to comply with the break schedule. In addition to the counseling,
we note also that complainant received progressive discipline, and that
a Letter of Warning was issued to him in March 1996 regarding this same
conduct. Although complainant argues that S routinely allowed other
workers to extend their break times, he provides no evidence to support
this claim. Accordingly, we conclude that S's actions were appropriate
and responsive to complainant's misconduct, that he was not subjected
to harassment based on his national origin.
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 herein.
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:
December 8, 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.
2The Commission's jurisdiction pertains only to the anti-discrimination
laws which we enforce. Unless it is proffered as evidence of a claim of
discrimination, matters such as fraud, waste, mismanagement or abuse of
authority are not within our purview. Accordingly, we will not further
address this matter herein.