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

Equal Employment Opportunity Commission

Dec 4, 2014

0120141669 (E.E.O.C. Dec. 4, 2014)

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. 0120141669

Hearing No. 520-2012-00307X

Agency No. 4B-110-0152-11

DECISION
On March 18, 2014, Complainant filed an appeal from the Agency’s February 24, 2014 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 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 order.

BACKGROUND
Complainant worked as an EAS-20 Customer Service Manager at the Middle Village Post
Office in Queens, New York. On November 23, 2011, Complainant filed an EEO complaint
alleging that various officials at the Flushing and Forest Hills Post Offices harassed him
between June 1 and November 22, 2011, because of his race (Caucasian), national origin (not
specified), religion (Catholic), color (White), age (not specified), and previous protected EEO
activity. 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). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s May 14, 2013 motion for
summary judgment and issued a decision on January 27, 2014. 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. The incidents comprising Complainant’s claim are
summarized below.

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(1) Complainant’s second-level supervisor, the postmaster of the Flushing Post Office (S2)
humiliated him at weekly staff meetings held between June 1 and June 22, 2011.

(2) On an unspecified date, Complainant’s immediate supervisor, a Customer Service
Operations Manager at the Flushing Post Office (S1), with the concurrence of S2, terminated
his detail as the Customer Service Manager at the Forest Hills Post Office, a higher-level
detail.

(3) On an unspecified date, S2 denied Complainant’s bid for promotion to an EAS-21
Customer Service Management position at the Fresh Meadows Post Office.

(4) On August 3, 2011, S1 subjected Complainant to a “witch hunt” by having a climate
survey conducted at the Forest Hills Post Office after his detail at that office had ended.

(5) Between August 8 and August 12, 2011, S1 did not allow Complainant to work an earlier
schedule, which resulted in a scheduling conflict with Complainant’s outside employment.

(6) On November 22, 2011, S1 denied Complainant’s request to have a particular employee
assigned to work under him as a 204B acting supervisor.

During the investigation, Complainant was asked to provide an affidavit but failed to do so. A
request was sent by delivery confirmation no. 9405 5036 9930 0352 6808 43 to Complainant
on December 24, 2011, and by delivery confirmation number 9405 5036 9930 0352 6824 to
his attorney on December 24, 2011. The request was delivered to the Complainant on
December 30, 2011, and to his attorney on December 28, 2011. Investigative Report (IR) 5, 8,
84-88. Neither Complainant nor his attorney responded to the investigator’s request.

ANALYSIS AND FINDINGS
Complainant argues at the outset that because the Agency served its summary judgment motion
seven months after the closing date for the discovery period, as opposed to within the fifteen-
day time limit specified in the AJ’s acknowledgement and order, the AJ erred in not dismissing
the motion. Complainant’s Appeal Brief, p. 2. Commission regulations confer full
responsibility for adjudicating complaints upon the AJ. 29 C.F.R. § 1614.109(a). Actions that
the AJ takes in exercising that responsibility will not be disturbed unless it was so clearly
against reason or the evidence as to constitute an abuse of discretion. See Hunter v. Social
Security Administration

, EEOC Appeal No. 0720070053 (February 16, 2012). Neither party
in this case requested discovery, and the AJ extended the time frame for Complainant to
respond to the motion. AJ’s Decision, pp. 7-8; Agency’s Response to the Appeal, p. 2. We
therefore find that the AJ did not abuse his discretion in not dismissing the Agency’s motion
for summary judgment.
To warrant a hearing on his harassment claim, Complainant would have to present enough
evidence to raise a genuine issue of material fact as to whether, because of his race, color,
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religion, age, national origin, or prior EEO activity is unlawful, S1 or S2 subjected him to
conduct so severe or pervasive that a reasonable person in his position would have found the
conduct to be hostile or abusive. See 29 C.F.R. § 1614.109(g); Harris v. Forklift Systems,
Inc., 510 U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service

, EEOC Appeal No. 01972699
(Aug. 14, 1998).
Incident (1): S2 averred that during the period in question, he convened a number of staff
meetings and conducted daily “drill down” teleconferences in order to identify and correct
performance deficiencies at the facilities selected to participate. During these staff meetings
and teleconferences, S2 would ask each manager specific, targeted questions directly related to
the productivity of that manager’s facility. Complainant participated in these meetings and
teleconferences and was asked the same performance-related questions as the other managers.
IR 98.

Incident (2): S1 and S2 both averred that they based their decision to remove Complainant
from his detail as the Forest Hills Customer Services Manager upon concerns raised by a union
official about Complainant’s decision-making and the hostile work environment at Forest Hills,
which arose under Complainant and his acting 204B supervisor. S1 and S2 identified four
concerns that, in their view, caused them to question Complainant’s judgment: his failure to
personally consult with the union in making route adjustments, which significantly impacted
budgeting and staffing; his decision to personally investigate an employee who was out on
extended leave rather than alert the postal inspection service; his failure to post the holiday
schedule, which violated the collective bargaining agreement and put the Agency in jeopardy
of incurring monetary losses through payment of excessive overtime; and his failure to fully
investigate a potential incident of workplace violence involving his 204B supervisor. IR 91,
99.

Incident (3): S2 averred that while Complainant was one of three candidates interviewed for
the vacancy at the Fresh Meadows Post Office, the position was awarded to the Station
Manager of the Corona/Elmhurst Post Office, an EAS 22 Manager who had requested a
downgrade to an EAS 21 management position. IR 100, 216-17.

Incident (4): S2 averred that he had requested that a climate survey of the Forest Hills Post
Office be undertaken after Complainant was taken off his detail as Customer Service Manager.
According to S2, thirty-nine employees at Forest Hills responded that the work environment at
Forest Hills was much improved after the departure of Complainant and his 204B supervisor.
IR 101, 184.

Incidents (5) and (6) : S1 averred that Complainant’s primary responsibility was to the Middle
Village Post Office, and that he based his decision to adjust Complainant’s schedule and assign
204B acting supervisors solely on the Agency’s operational needs. IR 92.

While Complainant expressed his belief that the actions of S1 and S2 constituted discriminatory
and retaliatory harassment, he has not presented any evidence which contradicts the sworn
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statements made by these officials. We therefore find, as did the AJ, that Complainant’s
failure to raise a genuine issue of material fact as to the existence of a discriminatory or
retaliatory motive on the part of S1 or S2 precludes a finding of unlawful harassment. See
Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Moreover, none of the incidents comprising Complainant’s claim are severe or pervasive
enough to constitute harassment, either singly or collectively. Quinones v. Department of
Homeland Security

, EEOC Appeal No. 01A53109 (March 31, 2006).

CONCLUSION
Based on a thorough review of the record, 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.
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).
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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
Office of Federal Operations

Date
December 4, 2014