Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jan 29, 2015

0120142032 (E.E.O.C. Jan. 29, 2015)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120142032

Agency No. 1B-121-0011-13

DECISION
On April 28, 2014, Complainant filed an appeal from the Agency’s March 26, 2014 final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq

. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Building
Equipment Mechanic at an Agency facility in Albany, New York. On August 8, 2013,
Complainant filed an EEO complaint wherein he claimed that the Agency harassed him in
reprisal for his prior protected EEO activity when:

1. On or about March 1, 2013, management canceled the EC-1 training that he had
signed up for.

2. On an unspecified date, the locks on his cabinets were cut off.

3. On March 27, 2013, he was instructed to move his toolbox and cabinets to the
boiler room, but there was no room available because other Building Equipment
Mechanics had been given notice of the move a week earlier.

4. On or about July 22, 2013, Complainant was denied a promotion to an ET-10
position.

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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 EEOC
Administrative Judge (AJ). 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 Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. Complainant stated that he has acted as an EEO representative for over twelve
employees who have sought his assistance for their EEO complaints. With regard to claim (1),
Complainant stated that he applied for EC-1 training by signing on March 1, 2013, and March
15, 2013, a posted sheet that displayed the training, the dates of the training and hours of the
training. According to Complainant, he changed his mind during the posted time frame and
ultimately settled on June 3, 2013. Complainant accused Manager 1 of discriminating against
him when he was subsequently denied training. The Agency found that Complainant
established a prima facie case of reprisal. The Agency stated that Complainant’s EC-1 training
was canceled in March 2013, due to Complainant attending his son’s graduation. Manager 2
asserted that he was involved in the cancellation of training because he had posted the wrong
course dates and there would not be sufficient time contractually to repost and gain a seat they
were assuming might become available. Manager 2 stated that at no time did the Albany
facility have a confirmed seat in any of the EC-1 courses it posted. According to Manager 2,
once the incorrect postings came down, the earliest he could have reposted course offerings
would have been March 19, 2013, and the postings would then have needed to be up for two
weeks until April 3, 2013. Manager 2 stated this would have placed the posting within the 60-
day mark and the odds of obtaining a seat in the June course would have been minimal.
Manager 2 further stated that the July course dates were not reposted because no eligible
employees had signed the original posting. Complainant claimed that posting training slots
without actually having the slots was an attempt to see who wanted specific training and then
deny the employees who Manager 1 wanted to deny under the guise of not having those
training slots available. Complainant maintained that it was the senior employees who were
awarded training opportunities, and he was the senior Building Equipment Mechanic at the
facility.

With respect to claim (2), Complainant claimed that he was out of the office when the locks on
his cabinets were cut off. Complainant argued that during his absence, management was
obligated to keep his tools and belongings safe and secure. Complainant asserted that the
cutting of an employee’s locks only occurred if that employee was not expected to return to
work. Manager 1 stated that he was not aware that Complainant’s locks had been cut.
Manager 3 asserted that Complainant showed him that his keys did not fit the locks on his
cabinets and that was all he knew of any locks that did not work. Manager 3 stated that he did
not know if anyone cut locks there.

As for claim (3), this claim concerns a lack of room for Complainant’s toolbox and cabinets in
the boiler room and Complainant not receiving notice of the move to the boiler room until a
week after the other Building Equipment Mechanics received notice. Complainant claimed that
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Manager 3 instructed that a shelf and table be removed from the front of the boiler room in
order to make room for his toolbox and cabinets. Complainant stated that subsequently the
table and shelf were placed back where they were before they were removed. Manager 1
stated he was unaware that Complainant was notified later than other Building Equipment
Mechanics of the relocation. Manager 3 stated that he did not know when the others were told
to move.

With respect to claim (4), Complainant stated that he passed the required test and the interview
for the ET-10 position. According to Complainant, Manager 1 discriminated against him by
not filling the ET-10 position on or about July 22, 2013, as he would have been the one who
would have been promoted from the promotion eligibility register to fill the Tour 3 ET-10 bid.
Manager 1 responded that management has not filled any ET position in four years since they
are three positions over the complement. Manager 3 stated that management had one residual
ET position that had not been posted because they planned to move an employee into that
position from another tour but that move never happened due to discussions with the Union.
Manager 3 acknowledged that Complainant was on the promotion eligibility register and met
the requirements for the position, but that no decision had been made because no position had
been posted. Manager 3 asserted that the only posting was to allow those who held ET jobs to
move to different days off. The Agency determined that Complainant failed to establish that its
explanations for the alleged actions were pretext intended to hide retaliatory intent.

The Agency determined that Complainant failed to establish a prima facie case of harassment.
The Agency reasoned that the incidents at issue did not come near the requisite level of
pervasiveness and severity to constitute a hostile work environment.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that Manager 1 created a hostile work environment for him.
In support of his position, Complainant submits a statement from a Building Equipment
Mechanic who states that Manager 3 informed her that Manager 1 told him he would receive a
letter of warning if he did not move Complainant to the boiler room. According to
Complainant, although Manager 3 states that he (Complainant) is only sixth on the promotion
eligibility register, this is deceptive because all of the other individuals ahead of him have
declined the ET position. Complainant also claims that a Supervisor stated that a bid would be
abolished before they would allow him to receive it.

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant has set forth a prima facie case of reprisal as to
each of the claims at issue. The Agency explained as to claim (1) that Complainant’s training
was canceled after he stated that he would be attending his son’s graduation. With regard to a
subsequent training opportunity sought by Complainant for June 3, the Agency stated that
Manager 2 had erred in posting the wrong course dates and there would not be sufficient time
to repost and gain a slot. We find that the Agency has presented a legitimate,
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nondiscriminatory reason for Complainant not receiving training during the times at issue.
Complainant states that he does not believe that management did not have possession of a
training slot. Complainant further argues that if management was posting training slots without
actually having the slots, then this was an attempt to see who wanted specific training, and then
Manager 1 would deny training to those employees he wanted to deny under the guise of there
being no slots available. We find that Complainant has not presented sufficient argument or
evidence to refute the explanation articulated by the Agency.

With respect to claim (2), Agency officials expressed a lack of awareness as to whether or why
Complainant’s locks were cut. Complainant contends that this was an act of intimidation but
he has not presented persuasive argument or evidence that the cutting of his locks was
attributable to retaliatory motivation. As for claim (3) and Complainant being required to
move his toolbox and cabinets to the boiler room, the Agency stated that it did not know why
Complainant learned of the relocation a week later than other Building Equipment Mechanics.
The Agency stated that the relocation occurred because the existing Building Equipment
Mechanic shop was slated to become a stock room. Complainant argues his move to the boiler
room was part of Manager 1’s plan to create a hostile work environment for him.
Complainant points out that the table and shelf that had been moved to make room for his
toolbox and cabinets were placed back in the original space. However, we observe that
subsequent to this, the Agency spoke to the Building Equipment Mechanics about making room
for Complainant in the boiler room. We find that Complainant has not established that the
Agency’s actions in the handling of this matter were attributable to retaliatory motivation.

In terms of claim (4) and Complainant contending he was denied a promotion, the Agency
stated that it had not filled an ET position in over four years because they were three positions
over the complement. The Agency asserted that there had not been a posting to fill an ET
position. Complainant challenges the Agency’s argument by claiming that management had no
intention of allowing him to secure a promotion. Complainant states that since the five
individuals ahead of him on the promotion eligibility roster have declined an ET position, he in
reality would be the one who would obtain an ET position if a bid was made available. We
find that Complainant has not presented sufficient argument or evidence to establish that the
Agency’s explanation for him not being promoted was pretext intended to hide retaliatory
intent.

CONCLUSION
The Agency’s determination in its final order that no discrimination occurred is AFFIRMED.

0120142032

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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
January 29, 2015