01A23733
09-02-2003
Wilfredo Morillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Wilfredo Morillo v. United States Postal Service
01A23733
September 2, 2003
.
Wilfredo Morillo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A23733
Agency No. 4F-950-0072-99
Hearing No. 370-99-X2690
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Distribution Clerk at the agency's
Saratoga Post Office in Saratoga, California, filed formal EEO complaints
on April 24, 1999, and January 10, 2000, alleging that the agency had
discriminated against him on the bases of race (Asian), disability, age
(D.O.B. 4/14/41) and in reprisal for prior EEO activity when:
he was asked to perform dispatch duties on three occasions;
(2) the Postmaster told another supervisor that complainant's complaint
wouldn't "go anywhere," that complainant was on his list that he would
get him somehow;"
first class mail was put in complainant's slot to be returned although
they all had good addresses;
management failed to respond in a timely fashion to complainant's
request for a "Return to Sender" stamp;
complainant's mailed was placed in the Postmaster's box;
a 204B supervisor (acting) threatened him;
he was given a direct order to break down the mail:
the Postmaster sent him home and told him not to return to work until
he was cleared by the agency Medical Officer; and,
he was told to dump all Undeliverable Bulk Business Mail (UBBM) as
garbage and work dispatch.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing, finding no
discrimination. The AJ concluded that there was no discrimination of the
bases of complainant's race, age, disability or in reprisal for prior
EEO activity. The agency's final order implemented the AJ's decision.
On appeal, complainant contends that his attorney did not notify him
that the hearing was cancelled. The agency requests that we affirm its
final order.
Concerning his allegations of physical disability discrimination, the AJ
found that the complainant did not provide the agency with a specific
notice listing his limitations until November 17, 2000, over a year
and a half after he had filed his original EEO complaint. As a result,
the AJ found that the agency had not been put on notice that his back
injury was an impairment and that the removal of some of his duties might
be required as a reasonable accommodation. The AJ further found that,
with respect to the allegations of mental disability discrimination,
there was no indication that the complainant had requested reasonable
accommodation. The AJ found that complainant was unable to connect his
disability with any required accommodation which he was denied. Finally,
the AJ found that complainant failed to establish a prima facie case of
disability discrimination in that he had not shown that he was treated
differently than other similarly situated clerks.
With respect to issues 1, 7 and 9, the AJ concluded complainant could
not show that the actions complained of constituted an adverse, tangible
employment action. Further, she found that the record demonstrated that
other similarly situated clerks were required to perform the same duties.
Regarding issue 2, the AJ found that, while the statement allegedly made
by the Postmaster appeared to be evidence of retaliatory motivation,
it was made before complainant had sought EEO contact. The AJ found
that complainant had last previously sought EEO counseling some ten
years before and it did not involved the Postmaster. The AJ further
found that with respect to the remainder of his claims, he was unable
to establish a prima facie claim of retaliation because he could not
establish how being required to perform his job duties or comply with
a uniformly applied policy constituted an adverse employment action.
The AJ found that, with respect to issues 3, 4 and 5, that the incidents
were not tangible employment actions and were not sufficiently severe
or pervasive to constitute actionable harassment.
With respect to issue 6, the AJ found that complainant provided no
specific information as to who made the threat, when the threat was made
and in what context which it was made. The AJ found that neither the
agency nor the EEOC should be required to guess what were complainant's
allegations.
Concerning issue 8, the AJ found that there was nothing in the record to
suggests that complainant was subjected to disparate treatment regarding
the need to obtain clearance from the Medical Officer. The AJ stated
that the rule appeared to be a uniformly applied policy for such absences.
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact in dispute. 29 C.F.R. 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of
the Federal Rules of Civil Procedure. The U.S. Supreme Court has held
that summary judgment is appropriate where a court determines that, given
the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court's function is not to weigh the evidence but rather
to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. An issue of fact is "genuine"
if the evidence is such that a reasonable fact finder could find in favor
of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact
is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, the
issuance of a decision without a hearing is not appropriate. In the
context of an administrative proceeding, an AJ may properly consider
issuing a decision without a hearing only after determining that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Here, complainant is alleging harassment based upon his race, age,
disability and in reprisal for prior protected activity. 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 patterned or pervasive. Wibstad v. United States
Postal Service, EEOC Appeal No. 01972699 (August 14, 1998) (citing
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). 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. Harassment is actionable only if the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Here, viewing the facts in the light most favorable to complainant and
assuming, arguendo, that complainant is an individual with a disability,
we find that he was not subjected to a hostile work environment with
respect to allegations 1, 3, 4, 5, 7, 8 and 9.<1> The record reflects
that the harassing actions alleged by complainant were not sufficiently
severe or pervasive to alter the conditions of his employment. Moreover,
complainant has proffered no persuasive evidence to show that the
alleged harassment was based upon his race, sex, age or disability.
As such, complainant has failed to show that he was subjected to unlawful
harassment in violation of Title VII, the ADEA or the Rehabilitation Act.
Complainant has raised a specific claim of reprisal in issue 2 and
general claims of reprisal discrimination in the remainder of the
complaint. Complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The record reveals that the AJ erred by finding that complainant's
most recent EEO activity was ten years before the alleged comments made
by the Postmaster. The record shows that complainant contacted an EEO
counselor in February of 1999 and filed a formal complaint on April 24,
1999. However, we find the AJ correctly found that neither the alleged
comment in claim 2 nor any of complainant's other claims, taken together,
were sufficiently severe or pervasive to alter the terms and conditions
of complainant's employment, and we therefore conclude that complainant
did not establish a prima facie case of retaliatory harassment.
With respect to his contention that he was not notified that his hearing
was canceled, the record reveals that complainant was provided with notice
of the cancellation of his hearing in the form of a fax to his attorney
of record, as well as follow up notices sent to his attorney and himself.
After a careful review of the record, the Commission finds that the
issuance of a decision without a hearing was appropriate and that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Accordingly, we affirm
the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 2, 2003
__________________
Date
1 With respect to issue 6, the we find that the
AJ properly concluded that complainant provided no specific information
as to which 204B supervisor threatened him, when the threat was made
and in what context the alleged threat was made.