Adrian W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Jun 20, 2019

0120182011 (E.E.O.C. Jun. 20, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Adrian W.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.

Appeal No. 0120182011

Agency No. 6Z000002517

DECISION

On May 25, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
April 30, 2018, final decision concerning his equal employment opportunity (EEO) complaint
alleging 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether the Final Agency Decision (FAD) correctly found that Complainant failed to establish
that he was subjected to discriminatory harassment based on religion, sex, and retaliation (prior
EEO activity) when:

1. In late May 2017, his Manager made false allegations against him that led to him being
investigated by the Inspection Service for alleged criminal activity;
2. In late May/early June 2017, his Manager called him to her office for a disciplinary
investigation and tried to coerce and intimidate him into confessing to the charges against
him in the Inspection Service investigation;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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3. On an unspecified date, he was accused of soliciting surveys from his coworkers by his
Manager;
4. On an unspecified date, he was given a falsified document and ordered to discipline an
innocent employee based on that document;
5. On an unspecified date, his Manager orchestrated an investigation against him by the
Office of the Inspector General;
6. On an unspecified date, he was moved from his window cubicle to a less desirable location;
and
7. Since he accepted a “developmental detail” he has been isolated with no work-related
contact with any members of management or his coworkers.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Time and
Attendance Collection System (TACS), Help Desk, EAS-21 at the Agency’s Eagan Accounting
Service Center (ACS) facility in Eagan, Minnesota. On October 19, 2017, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the bases of sex (male),
religion (Christian), and reprisal as stated above.

Claim 1:

Complainant alleged that his Manager, the Senior Payroll Accountant (S1), made false allegations
against him that led to him being investigated by the Inspection Service (IS) for alleged criminal
activity. He noted that he was subjected to an investigative interview by an inspector, which was
immediately prior to a craft employee (C1) being similarly investigated for threats made in an
email C1 sent to S1. He stated that he was never told, and does not know, the exact accusations
or charges that led to the investigation.

Complainant maintained that the accusations seemed to change to suit S1, S2, another Manager,
and the Agency’s best interests. Complainant alleged that once the threat accusation was proven
untrue, to cover up S1’s false accusations, he was told that he was never under investigation. He
maintained that, to the contrary, he knew he was under investigation, as S2 led him to believe he
was under investigation, he was led into an investigative interview where S2 took notes, he was
interrogated by the IS while S2 and S1 were not treated similarly, and he was never told that he
was not under investigation.

Complainant also alleged that S1 did not inform him that the IS had cleared him of all accusations
but instead she falsely accused him of “something to do with a note on C1’s attendance slip,” as
well as delaying C1’s criminal investigation until a union steward was found for him. He asserted
that S1, under the guise that the IS found he committed a criminal offense, attempted to elicit a
confession from him.

Complainant alleged that his prior EEO activity was a factor in the alleged IS investigation because
S1 instigated an incident on the workroom floor and lied about it to initiate discipline against him.
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He alleged that she then fostered the false premise that he threatened her to uphold the discipline
after it was proven the incident never happened as she described it. He also cited S2’s attempt to
circumvent C1’s steward rights and S1’s efforts to intimidate him to confess under the threat of
further arrest involving guns.

S1 explained that she did not make any accusations against Complainant that led to him being
investigated IS as alleged. She averred that, to her knowledge, no such investigation was
conducted. She noted that she did report an email message from one of Complainant’s subordinates
that she felt could be construed as threatening; however, the IS later determined that the email was
not intended to be threatening. S1 added that the Inspector had a conversation with Complainant
concerning him delaying the interview with C1, during which he asked S2 to take notes. She noted
that she is unaware of, and does not have, those notes.

S2 stated that, for reasons unknown to her, she was asked by the Inspector to take notes during a
conversation between Complainant and the Inspector. She noted that this conversation was not
identified as an investigative interview; that she took relevant notes; and that she did not provide
her notes to the Inspector, nor were they used for any purpose.

Claim 2:

Complainant alleged that S1 called him into the office under the guise of a first ever “weekly
touch-base meeting” and tried to coerce and intimidate him into confessing to two charges related
to the IS criminal investigation. He noted that it was then very apparent that this became a
disciplinary investigation stemming from C1’s attendance slip, as well as S1’s objections to his
actions in enabling C1 to exercise his legal right to a union steward upon his request.

He asserted that S1 used his prior criminal investigation involving this matter, and her wrongful
implication that he was still under criminal investigation and criminal charges would be brought,
to try and coerce and intimidate him into confessing to the two charges in retaliation for his prior
EEO complaint. Complainant asserted that no investigation was conducted involving S1’s threat
against him, yet he and C1 were criminally investigated by the IS for a proven false threat
accusation initiated by S1, which proves disparate treatment and a cover-up.

S1 explained that to her knowledge there were no “charges” against Complainant and therefore
she could not have attempted to coerce him into confessing to them. She asserted that C1 submitted
a request for annual leave which was denied by S2 due to the “needs of the service.” She averred
that she became aware, after the fact, that the request contained harassment/hostile work
environment comments in the remarks section; that she addressed those comments with
Complainant as C1’s supervisor; and that he stated he did not notice the comments, and that C1
had brought up the issue a couple of times to him but C1 did not want to formally pursue it.

S1 also explained that the meeting mentioned by Complainant was not a “weekly touch base
meeting.” She noted that the first meeting of the touch base series was scheduled to begin on June
1 but that first meeting never occurred due to the meeting regarding the issue with C1’s hostile
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work environment comment. She added that she also explained to Complainant that C1 was
instructed to go to the conference room by a Federal law enforcement agent (the Postal Inspector).
She noted that she requested a union representative upon being notified; however, Complainant
should have instructed C1 to follow the instructions of the Postal Inspector, who was aware of the
rules concerning representation.

S1 denied Complainant’s allegation that she attempted to intimidate him into confessing that he
handled C1’s situation incorrectly by threatening to bring back the IS with “badges and guns.”
She asserted that as the manager, she is obligated to discuss such matters and she wanted to ensure
he was aware of C1’s comments on his leave request form. She explained that she attempted to
underscore to Complainant that when the IS shows up to interview an employee, he needed to
make that employee available. S1 averred that, in that context, she pointed out that “these are
people with badges and guns,” but only to underscore that they were to be taken seriously.

S1 asserted that Complainant was not under investigation regarding the aforementioned incidents,
and she had no knowledge regarding the “two charges” alleged by Complainant. She further
asserted that Complainant did not inform her that he felt she was trying to coerce and intimidate
him into wrongfully confessing to such charges.

Claim 3:

Complainant alleged that S1 accused him of soliciting surveys from his coworkers. He noted that
a coworker, (C2) was also involved in that she gave instructions to a customer concerning surveys.
He specified that the issue of soliciting surveys was discussed in a meeting, and in a follow-up
email. Complainant explained that the purpose of the surveys was to see if customers were happy
with the service from the TACS Help Desk. He noted that he does not administer the surveys;
rather, the administration of the surveys falls on a Quality Assurance Analyst (the Analyst). He
further noted that the surveys are sent out automatically but can also be sent out manually, and he
was following S1’s intent to have the Analyst manually send out surveys to known satisfied
customers.

With regard to the meeting, Complainant asserted that this issue was discussed with S1 before she
began her interrogation concerning charges from his criminal investigation. He asserted that he
told S1 that he instructed his Team to let him know of positive interactions with customers, so they
could send them a survey. He noted that he forwarded these emails to S1 and the Analyst for
action.

Complainant further asserted that the email in which S1 accused him of soliciting surveys was
even more harassing and hostile than the charge. He alleged that S1 showed “discriminatory
disparate treatment” toward him by deeming an action they were doing at her request as a violation
and singling him out for a warning. He further alleged that the timing of this was important, as
she had to know that he was cleared of IS charges and she wanted to keep the pressure on him.

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S1 explained that due to multiple emails from Complainant requesting that surveys be sent to
callers who called the Help Desk during his tour, she listened to the phone calls and discovered
that one of Complainant’s employees was asking callers if they would like a survey, and, if so, to
email Complainant to have them provided. She averred that she had a conversation with
Complainant regarding this issue; and sent him an email in which she reiterated to Complainant
that soliciting surveys from customers was not appropriate and should cease immediately. She
added that the Analyst was responsible for administering the surveys through an automated
process.

Claim 4:

Complainant alleged that S1 and S2 gave him a falsified document and ordered him to discipline
an employee, now retired, based on that document. He averred that after receiving the documents
and order from S2, he reviewed the documents and quickly found them to be a poorly constructed
artifice due to inconsistencies therein.

He indicated that he emailed S2 stating there was a mistake with the documents, and she just
emailed back, “thanks,” which he took to be a sign that she knew the documents were fabricated.

S2 explained that she emailed Complainant a clock ring error snapshot as a reminder to fix the
timekeeping error for the now retired employee but that she did not provide falsified documents
neither did she order or request that Complainant discipline him as alleged.

Claim 5:

Complainant alleged that S1 orchestrated an Office of the Inspector General (OIG) investigation
against him solely to intimidate him. He explained that according to S1’s notes, the Special Agent
in Charge (SAIC) was the OIG investigator who then forwarded his closed-out investigation to
another Manager. He noted that a Senior Systems Specialist (Specialist 2) was also involved in
that she acted in collusion with S1 to single him out, and she “made false statements and lies of
omission in reporting this accusation.” He stated that the accuser (Specialist 2) then filed an OIG
complaint against him because she did not want him knowing what raises she received.
Complainant stated that he had previously become aware of those who were given raises through
admissions made by S1 and her manager in his initial EEO Redress meeting. He averred that there
was no evidence that he illegally obtained any confidential information or shared it outside the
EEO forum. Complainant noted that it appeared the investigation was closed quickly, and he was
not even interviewed by the OIG.

S1 denied Complainant’s allegation that she orchestrated an OIG investigation against him. She
explained that she received an email from the OIG regarding an allegation that Complainant was
looking at pay raise information for other TACS Help Desk employees; and that she addressed this
issue with Complainant and told him that she was following up on the OIG’s contact regarding the
allegation. She noted that Complainant stated he did not think he had looked at the pay raise
information.
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S1 explained that she gave Complainant a screen shot of the mainframe application regarding
unauthorized use, due to the complaint sent to the Cyber Investigations; that she informed
Complainant that pay raise information was confidential, and that it was unacceptable for him to
access it as it relates to other employees. She also noted that pay program application access was
removed from all TACS Help Desk employees; however, Complainant never had access to the
application; that she had no knowledge of how he obtained pay raise information because this
information was not provided at any management meeting as Complainant alleged; and that to her
knowledge, any discussions held within EEO Redress are limited to that process. S1 asserted that
her meeting with Complainant was to address the OIG’s email to her regarding the pay raise
allegation; that no other investigation occurred; and that she was unaware of any evidence that
Complainant obtained any confidential information or shared it outside the EEO forum.

Claim 6:

Complainant alleged that S1 unilaterally authorized moving him from his window cubicle to a less
desirable location in the front of the room while he was on detail; however, she did not inform or
consult with him concerning the move, nor was he given adequate time to move his personal
belongings. He noted that S2 informed him of this move and was allegedly seen dumping his
personal belongings into boxes and later ordering another employee to move them elsewhere. He
also noted that before this move, he sat closer to, and had better observation of the employees who
report to him; and that the move was done in malice and retaliation.

Complainant maintained that it was apparent this move was only done to embarrass him, and that
S1 can now claim this move was made to better watch him, even though she had no just cause for
this type of action. He noted that S2 moved to his original cubicle and a lesser used “badge
making” operation was moved to the window seat areas, which mostly was vacant.

S1 explained that prior to leaving the TACS Help Desk on a developmental detail, she had a plan
to reconfigure the workspace. She noted that, prior to that time, she moved the Badge Operations
Work Stations to the area where S2 and another employee were working and created two new
supervisor workstations at the other end of the office. She explained that she planned to place the
opening and closing supervisors in cubicles closer to the time clock to better monitor the arrival
and departure of the agents for all shifts.

S1 further indicated that she wanted better coverage of the workroom floor, rather than having all
supervisors grouped in a single area. She noted that while Complainant was the closing supervisor
at the time the changes were made, he was detailed out of the office, so he was not actually
relocated. She further noted that she is no longer at the TACS Help Desk and, therefore, she is not
aware of whether anyone is occupying Complainant’s original window cubicle, nor is she aware
of the plans for when Complainant returns from his detail.

Claim 7:

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Complainant alleged that S1 is the sole management official responsible for the professional
damages and lost professional opportunities associated with this claim. He explained that he had
been on detail to work on Lean Six Sigma (LSS) projects, but that there were few projects requiring
his attention, and that he worked alone on self-study projects since his acting manager was gone
most of the time. Complainant further noted that he exceled in the detail, and he did so well that
he was asked to extend it another three months. He alleged, however, that the projects he was
scheduled to work on were all delayed, and he did not have the training or experience to work on
them alone; as such, he could have worked on these projects while still performing his regular
duties, as S2 and S1 were allowed to do. Complainant stated that he did not tell his manager that
he felt isolated from his coworkers because his manager has not had time to discuss personal
matters with him. Complainant maintained that S1 isolated him and did not allow him to
participate in decisions, which undermined his authority with his team, fostered an atmosphere of
“us” against them, and led to poor decisions that would have been circumvented with his input.

S1 explained that she had no knowledge of Complainant’s circumstances related to his
developmental detail, as she was not the management official who offered him a detail, nor was
she involved in his supervision on that detail. She further noted that Complainant did not mention
to her that there was no “job related” work associated with the detail or that he felt isolated from
his coworkers, and she had no knowledge of his job duties in the detail.

B1, Complainant’s supervisor on the developmental assignment, asserted that he did not recall any
mention by Complainant that there was no “job-related” work associated with the detail; that the
projects he was scheduled to work on were all delayed, that he did not have the training/experience
to work on them alone; or that he has not been given hands-on opportunities to improve. He
averred that, in his estimation, based on the assigned training tasks, Complainant’s inexperience
with the content of the courses, and his rate of completion, would have precluded him from
performing his regular duties in his regular position while on the developmental detail. He also
pointed out that Complainant remarked on several occasions that his inexperience with the content
of the courses was adversely impacting the rate of completion.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Among other things, in his appeal brief, Complainant reiterates his allegations; states that C1 has
won every grievance he has filed concerning “these adverse actions” and, was also found innocent
by the Agency’s Investigation Service of S1’s threat accusations. Complainant asserts that based
on the information in his brief, his appeal of the Agency’s final decision should be granted.

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STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
religion, sex, and reprisal; we find that the Agency articulated legitimate, nondiscriminatory
reasons for its actions as were set forth above in detail. For example, S1 explained, and the record
support her explanation, that the impetus behind the alleged IS investigation was her report
regarding a potentially threatening email sent to her by C1. While the record indicates that
Complainant was questioned by an inspector, it does not support Complainant’s allegation that S1
made false allegations against him resulting in him being investigated by the IS for alleged criminal
activity, nor does it show that Complainant was under investigation as alleged. The record
indicates that while S2 took notes during the conversation with the inspector, which was not
identified as an investigative interview, she did so at the inspector’s request with no input from
S1. Even if Complainant was under investigation as alleged, the evidence shows that he was only
asked questions in conversations with the inspector, and it is inconsequential that S1 did not inform
him that he was not being investigated.

In an effort to show pretext, Complainant contended that neither S1 nor S2 was subjected to an
investigation, insinuating that they are his comparators; and that management’s actions toward him
were in retaliation for his prior EEO activity. However, both S1 and S2 are Complainant’s
supervisors; therefore, they are not similarly situated comparators. Complainant also failed to
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identify comparators for his retaliation allegations; and although the named management
employees involved were aware of his prior EEO activity which, at the time of the instant
complaint remained open, Complainant failed to establish the nexus between management’s
actions and that activity.

Also, while the record supports Complainant’s allegation that S1 accused him of soliciting surveys,
it contains no corroboration for his remaining allegations. Management provided
nondiscriminatory explanations for all its actions, e.g., S1 did not attempt to coerce Complainant
into confessing to criminal activity, S1 denied Complainant’s allegation that she orchestrated an
OIG investigation against him; Complainant’s office location was changed due to S1’s plan to
reconfigure the office work space, Complainant was not given a falsified document and ordered to
discipline a retired employee, and S1 was not involved with Complainant’s developmental detail.2

Regarding his hostile work environment claim, we find that under the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work
environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our
determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have

2 With respect to the solicitation of surveys, S1 stated that she had a conversation with Complainant
regarding this issue; and sent him an email in which she reiterated to him that soliciting surveys
from customers was not appropriate and should cease immediately.
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twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole

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discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

___________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

June 20, 2019
Date