Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jun 17, 2015

01-2012-3092-0500 (E.E.O.C. Jun. 17, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120123092

Hearing No. 430-2011-00320X

Agency No. 4K-280-0033-11

DECISION
On July 25, 2012, Complainant filed an appeal from the Agency’s June 25, 2012 final decision
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it for de novo
review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND
Complainant worked as a Carrier Technician at the Post Office in Asheville, North Carolina.
On March 28, 2011, he filed an EEO complaint in which he alleged that several members of
the facility’s management team, particularly the Lead Sales Service Associate (LSSA) and the
Customer Services Manager (CSM) subjected him to a hostile work environment because of
his disability and EEO activity. In support of his claim, he identified twenty-one incidents that
allegedly occurred between August 2010 and April 2011.

Complainant initially alleged that on August 24, 2010, the CSM told him that his wife’s job
would be in jeopardy if she was absent again. Investigative Report (IR) 191. The CSM
averred that at the time Complainant’s wife had been absent, she did not have her leave
approved under the Family Medical Leave Act (FMLA), but that she later obtained the
necessary approval. IR 463.

Second, Complainant alleged that on September 20, 2010, the CSM singled him and his wife
out at an all-hands meeting for taking excessive FMLA leave. IR 192. The CSM replied that
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she had convened the meeting in order to point out that sick leave usage at the Asheville Post
Office had not been properly addressed and would be monitored henceforth. IR 464.

Third, Complainant alleged that on September 27, 2010, when he reported a safety hazard, the
CSM threatened him, using words to the effect of “you don’t want to mess with me.” IR 192.
The LSSA averred that Complainant had requested that one of the homeowners on his route
move the mailbox from the house to the street. IR 376. The CSM testified that she did return
the safety hazard report form to Complainant after finding that there was no safety issue, and
that Complainant became loud and belligerent in insisting that there was. IR 464.

Fourth, Complainant alleged that the LSSA and the CSM demanded documentation for the
previous week during which he and his wife were absent, making threats that his wife would
be fired. IR 192-193. LSSA testified that he did request documentation from Complainant and
his wife to support their absences, and that they eventually provided that documentation. The
CSM noted that Complainant’s wife had been progressively disciplined for unsatisfactory
attendance, and that they were given additional time to submit the required documentation. IR
464.

Fifth, Complainant alleged that on October 6, 2010, the LSSA demanded that he sign a leave
slip for past absences before having a chance to review it. IR 193. The LSSA responded that
he did request that Complainant sign the leave slip, that he advised the Union Steward of the
situation, and that Complainant eventually signed and returned the leave slip. IR 376.

Sixth, Complainant alleged that on October 7, 2010, the CSM and the FMLA Coordinator
conspired to deny Complainant’s wife FMLA leave that she had requested, and that they had
refused to allow Complainant to fill out paperwork to take military leave under the National
Defense Authorization Act (NDAA). IR 193. The CSM testified that Complainant’s wife was
requesting FMLA leave for her husband’s NDAA leave, and that she was unaware of any
NDAA paperwork. IR 465. The FMLA Coordinator stated that FMLA determinations were
based on information contained in the applicable certification from the Department of Labor,
and that she had no knowledge of a request for leave under the NDAA. IR 603.

Seventh, Complainant alleged that on October 8, 2010, a Customer Services Supervisor (CSS
1) had berated him when he returned to the dock late. IR 194. CSS 1 Testified that she was
merely doing her job as the closing supervisor, and that her responsibilities included clearing
out trucks and cases to make sure that there was no undelivered mail, securing the vehicles and
the premises for the night, and filling out the necessary clearing sheets. IR 554-55, 563.

Eighth, Complainant alleged that on October 13, 2010, the LSSA and another Customer
Services Supervisor (CSS 2) deliberately drove past him while he was on his route in order to
spy on him. IR 194. The LSSA responded that he and CSS2 were on their way to lunch
together and that they happened to pass Complainant in the street. IR 377.

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Ninth, Complainant alleged that on October 22, 2010, the LSSA took no action to stop a City
Carrier (CC 1) from harassing his wife. IR 194. According to the LSSA, CC 1 was asking
why Complainant’s wife, his replacement carrier, was assigned to cover another route. The
LSSA explained to CC 1 that Complainant’s wife had a swollen knee, and that he had
accommodated her by granting her request for another route so that she would not have to put
as much pressure on that knee. The LSSA further testified that he told Complainant to return
to his case after Complainant approached CC 1 and told him to leave his wife alone. IR 377.

Tenth, Complainant alleged that on October 23, 2010, CSM expressed a desire to issue him a
letter of warning in connection with the incident involving CC 1 that had taken place the day
before. IR 194-95. CSM testified that she told the Union President that Complainant was
creating a disturbance on the workroom floor and had asked him to have a talk with
Complainant. IR 465.

Eleventh, Complainant alleged that on October 25, 2010, the LSSA had let CC 1 get away
with speaking badly about other employees with another City Carrier (CC 2). IR 195. The
LSSA averred that he did not hear the conversation between CC 1 and CC 2. IR 378.

Twelfth, Complainant alleged that on October 26, 2010, he overheard the LSSA speaking
about him with CSS 1. IR 195. The LSSA averred that he and CSS 2 spoke on a regular basis
about work, and that he needed to communicate with other supervisors in order to do his job.
IR 379.

Thirteenth, Complainant alleged that on November 2, 2010, the CSM had expressed a desire to
the Union President to put Complainant on thirty days administrative leave and issue him a
letter of removal for creating a hostile environment. IR 195-96. The CSM denied having that
conversation. IR 465.

Fourteenth, Complainant alleged that on November 8, 2010, the LSSA and CSS 2 had again
driven past him to spy on him as part of a sustained campaign to bully and intimidate him. IR
196. The LSSA reiterated that he did not spy on Complainant, that he and CSS 2 had simply
passed Complainant on their way to lunch, and that whenever Complainant was running behind
schedule in completing his delivery route, he would send out other carriers to assist
Complainant. IR 378.

Fifteenth, Complainant alleged that on December 14, 2010, the LSSA followed him around the
office. IR 196-97. The LSSA testified that Complainant had been away from his case,
engaging another employee in a prolonged conversation, and that he had asked Complainant to
return to his case. IR 379.

Sixteenth, Complainant alleged that on February 3, 2011, the FMLA Coordinator denied his
request for leave that had been previously approved. IR 197. The FMLA Coordinator
testified that Complainant had submitted two FMLA leave requests. She further averred that
the first request was denied for failure to provide the requested certification, and that the
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second request was approved for intermittent leave of up to three days on two occasions each
month. IR 604.

Seventeenth, Complainant alleged that on February 15, 2011, the LSSA refused to sign and
return previously submitted leave slips. IR 197. The LSSA stated that he could not approve
the leave Complainant was requesting because Complainant was claiming injury-on-duty (IOD)
which was normally handled by the Office of Workers’ Compensation. IR 379, 501-17.

Eighteenth, Complainant alleged that on March 1, 2011, he had asked the LSSA about his
leave balanced, and that the LSSA had never responded to his inquiry. IR 197. The LSSA
averred that he did not have a conversation with Complainant about his leave balance. IR 379.

Nineteenth, Complainant alleged that on March 24, 2011, the Station Manager (SM) had
threatened to put him in absence without leave (AWOL) status because the LSSA had refused
to sign leave slips that he had submitted. IR 380. The LSSA reiterated that he could not
approve the leave that Complainant was requesting because it concerned IOD, for which
Complainant and his wife did not submit the necessary paperwork. IR 380. The SM denied
that he had threatened to place Complainant and his wife on AWOL. He testified that
Complainant and his wife had been requesting leave for IOD rather than FMLA, but had not
been following the proper procedure. IR 488.

Twentieth, Complainant alleged that on April 9 and April 25, 2011, the SM and the Postmaster
had refused to sign his leave slips. IR 380. The SM averred that Complainant was still
requesting leave for IOD without submitting the proper paperwork. IR 488.

Finally, Complainant alleged that on April 26, 2011, the SM informed the Union President that
he could not obtain approval for IOD because he did not provide an injury compensation case
number. The SM confirmed that he spoke to the Union President about his concerns regarding
the nature of Complainant’s leave request, but denied that he had ever explicitly approved or
disapproved Complainant’s leave request. IR 489.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant requested a hearing, but the AJ dismissed the request after initially approving it
because Complainant failed to submit a pre-hearing report and respond to an order to show
cause. The AJ remanded the complaint to the Agency, and 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.

ANALYSIS AND FINDINGS
To prevail on his harassment claim, Complainant must prove, by a preponderance of the
evidence, that because of his disability or EEO activity, the LSSA, the CSM, or any other
individuals named in his complaint subjected him to conduct so severe or pervasive that a
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reasonable person in his position would consider that conduct hostile or abusive. See Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Wibstad v. U.S. Postal
Service

, EEOC Appeal No. 01972699 (Aug. 14, 1998). Only if Complainant satisfies his
burden of proof with respect to both of these elements, motive and hostility, will the question
of Agency liability present itself. Put another way, if Complainant fails to establish the
existence of a discriminatory or retaliatory motive on the part of a supervisor, manager, or
coworker, the harassment inquiry ends without the need to determine whether the conduct in
question was severe or pervasive enough to rise to the level of a hostile work environment.
In support of his effort to establish the existence of a hostile environment, Complainant
presents three pieces of evidence. The first is a hand-written note from a carrier to a union
officer in which she states that she was called into the office and questioned about her sick
leave. IR 280, 292. The second is a note from another carrier who stated that since the CSM
took over in August of 2010, she had been given a letter of warning regarding attendance and
told that she would be facing termination despite not abusing her sick leave. IR 281-82. The
third is a memorandum from the psychologist within the Agency’s Employee Assistance
Program, who noted that five employees, including Complainant and his wife, reported
experiencing high levels of stress and anxiety in the Asheville Post Office. IR 290.

The statements from these individuals do tend to support the notion that the work environment
at the Asheville Post Office was stressful for some employees, including Complainant and his
wife. None of these statements, however, goes to the central issue in this case, namely the
motivation of the CSM, the LSSA, and the other individuals identified by Complainant as
being responsible for the alleged acts of harassment. While Complainant asserts that the
actions taken by the CSM, the LSSA, and the others were based on his disability and EEO
activity, he has not presented any sworn statements from other witnesses or documents that
contradict the explanations provided by responding officials or which call their veracity into
question.

It is Complainant’s burden to establish the existence of an unlawful motivation on the part of
the responding management officials by a preponderance of the evidence, and more is required
to meet that burden than merely expressing one’s belief. We therefore find, as did the Agency
that Complainant failed to meet his burden of proof as to the existence of a discriminatory or
retaliatory motive on the part of the responding individuals with respect to any of the incidents
at issue in his complaint.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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

(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.

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RIGHT TO REQUEST COUNSEL

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
June 17, 2015