Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

May 28, 2015

01-2013-3140-0500 (E.E.O.C. May. 28, 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
(Western Area),
Agency.

Appeal No. 0120133140

Hearing No. 540-2013-00006X

Agency No. 4E-840-0022-12

DECISION
On August 29, 2013, Complainant filed an appeal from the Agency’s August 1, 2013 final
order 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. The Commission deems the appeal timely and accepts it pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Holladay Post Office which is located in Salt Lake City, Utah. On March 21, 2012,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of national origin (Mexican) and in reprisal for prior protected EEO activity when: (1)
since October 31, 2011, a coworker (C1) has threatened him; (2) he has not been allowed to
use the front door; and (3) on December 3, 2011, he was issued a Letter of Warning for
Failure to Follow Instructions/Express Mail Failure (LOW).

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 (AJ). Complainant timely requested a hearing,
and the AJ held a hearing on June 26 and 27, 2013. The AJ issued a decision on July 29,
2013, in the Agency’s favor. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected him to discrimination as
alleged.
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STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS
Claim 1 – C1 Threatening Complainant

With respect to Claim 1, the AJ noted that it is undisputed that both Complainant and C1 went
to their manager (M1) to blame the other for harassment. An investigation conducted by M1
revealed that both employees were involved in disruptive conduct toward each other.
Accordingly, the AJ concluded that M1 was in no position to take more discipline action
against either Complainant or C1. While Complainant alleges that C1 threatened him, the AJ
concluded that such assertion was not credible and that Complainant also failed to establish that
he communicated this alleged threat to M1. Moreover, the AJ noted that M1 gave both C1 and
Complainant the instruction to avoid contact with each other and that M1 was told by Threat
Assessment Personnel and the union steward that she did everything she could do. Given these
facts, the AJ concluded that Complainant failed to establish discrimination.

Claim 2 – Not Allowed to Use Front Door

The AJ concluded that even assuming a prima facie case could be established, the Agency
stated several reasons as to why they enacted the front door policy which required all carriers
to enter the facility using a back door. Specifically, the Agency asserts that the policy was
enacted for the security and efficiency of Agency operations. The Agency also explained that
the policy served to separate C1 and Complainant as Complainant would have to pass near C1
if he used the front door as an entrance. The AJ further concluded that to the extent the policy
was unevenly enforced, the evidence on record does not indicate that this uneven enforcement
was motivated by discriminatory animus given that it is undisputed that Complainant breached
the door policy with no resulting disciplinary action. The AJ further concluded that there is no
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credible evidence in the record indicating that the Agency's reasons are false or otherwise
motivated by discriminatory animus.

Claim 3 – December, 2011 Letter of Warning

The AJ concluded that assuming Complainant established a prima facie case of discrimination
regarding this issue, his supervisor (S1) articulated a legitimate, nondiscriminatory reason for
issuing the LOW. S1 explained that she was trying to correct the problem arising from
Complainant's failure to scan mail.

Complainant asserts that S1’s explanation is a pretext for M1 using S1 as a proxy to
discriminate against him. The AJ concludes that such assertion is undermined by the following
facts: (1) there were no concurring officials to the LOW; and (2) the undisputed evidence
shows that S1 made the determination to issue the LOW herself. The AJ concludes that there
are no credible facts on record to support the theory that M1 used S1 as a proxy to unlawfully
discriminate against Complainant. However, the AJ concluded that even assuming that M1 did
influence S1’s issuance of the LOW, the undisputed facts support the legitimate, non-
discriminatory reasons articulated for doing so.

Harassment Claim

Complainant claims that he was subjected to a hostile work environment due to his national
origin because of C1’s conduct since October 31, 2011. The AJ concluded that to the extent
that C1 subjected Complainant to whistling, singing, and hand drumming, the record does not
indicate that this conduct is connected to Complainant's protected classes. On the contrary, it
is undisputed that C1 subjected numerous employees, including non-Mexicans, to his
whistling, singing, and hand drumming. Moreover, the evidence shows that since age six, C1
has annoyed numerous persons, including his parents and teachers by his whistling, singing,
and hand drumming. The AJ concluded that while C1 changes the lyrics to songs based on the
person and C1’s surroundings, the record contains no credible evidence to sustain the argument
that C1 had changed the lyrics based on Complainant's national origin, let alone an attack on
Complainant's national origin.

Complainant also alleges that C1 verbally threatened him with violence and rape. The AJ
concluded that the record does not have sufficient credible evidence showing that C1 made
such threats. The AJ further concluded that C1 credibly testified that he did not make such a
comment. Complainant also alleges that C1 subjected him to national origin slurs on the work
floor due to alleged comments like "who's your daddy" and "I'm your daddy." The AJ
concludes that such slang comments were not based on Complainant’s national origin.

In addition, the AJ notes that it is undisputed that C1 yelled to Complainant "you lying piece of
sh_t," in response to Complainant's allegation that he stole mail. The AJ concludes that this
statement, while rude, was not shown to be motivated by national origin bias. Lastly,
Complainant asserts that C1 has made isolated statements to Complainant like "biological
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experiment gone wrong" and "red-headed Mexican." The AJ concluded that the evidence does
not establish that such comments were made on a frequent basis nor do they necessarily prove
that C1’s conduct was motivated by discriminatory animus. Given the above findings, the AJ
concludes the evidence in the record failed to establish that the alleged harassment was based
on national origin or that the alleged conduct was sufficiently severe or pervasive to alter
Complainant’s work environment.

Reprisal Claims

The AJ notes that Complainant asserts he was retaliated against because he told the Postmaster
(PO) that the new Finance Supervisor (FS) was promoted by M1 despite having a past criminal
record. As the AJ explains, this theory by itself does not establish a prima facie case of
reprisal because raising a person's criminal record is not protected EEO activity. Although
Complainant alleges that he communicated to PO his concerns about unlawful discrimination,
the AJ concluded that such assertions are not credible because Complainant did not raise them
until the EEO hearing. The AJ further explains that Complainant’s allegation is also
undermined by the fact that his affidavit and testimony heavily focused on nepotism, cronyism,
and favoritism in his description of the concerns to PO. The AJ also concluded that the record
contains insufficient evidence to indicate that M1 or other supervisors held retaliatory animus
toward Complainant for raising such concerns.

CONCLUSION
We find that substantial evidence in the record supports the AJ’s findings and conclusions.
Accordingly, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency’s final order.

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.
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5
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.

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 Date
May 28, 2015
Office of Federal Operations