Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Feb 11, 2015

0120133065 (E.E.O.C. Feb. 11, 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
(Pacific Area),
Agency.

Appeal No. 0120133065

Hearing No. 480-2013-00199X

Agency No. 4F-967-0008-12

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
July 22, 2013 final Agency decision (FAD) 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’s review is de novo. For the following reasons, the Commission AFFIRMS
the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-Time
Flexible City Carrier at the Agency’s Post Office in Kahului, Hawaii. Complainant transferred
to the facility in January 2011. Complainant claims that after his initial training, the Customer
Services Supervisor (S1) and the Acting Supervisor (AS) would call him on his personal cell
phone, ask where he was, and give him instructions. Complainant alleges that management
consistently called him until he complained, and they began to call him less. In addition,
Complainant claims that S1 had a habit of openly discussing his performance whenever she ran
into him and on the workroom floor.

On March 10, 2011, Complainant was observed making a U-Turn with his vehicle door open.
In addition, on March 15, 2011, Complainant was involved in an accident in which he
sideswiped a tree branch causing $300.00 in damage to the vehicle. As a result, S1 issued
Complainant a Letter of Warning on March 31, 2011, for failure to work in a safe manner.
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On June 13, 2011, S1 issued Complainant a Seven-Day No Time-Off Suspension for losing the
keys to his vehicle. Complainant claims that he stopped at his house to use the restroom, put
the vehicle keys down, but upon leaving could not find them. Complainant called management
after looking for the keys, and found them six days later behind his dresser. In addition, on
July 15, 2011, S1 issued Complainant 14-Day No Loss of Time or Pay Suspension for failure
to perform his duties as assigned when he failed to secure the mail by not locking his cluster
box unit.

Complainant alleges that management never returned copies of his leave request slips.
Complainant claims that on February 23, 2012, Complainant told management that he needed
to see his neurosurgeon because he had cancelled his last appointment when his leave request
was not returned. S1 approved the request only for his lunch break, but again did not return
the leave slip.

On February 15, 2012, Complainant received a Notice of Removal for missing delivery of a
parcel and scanning it as “undeliverable as addressed.” Complainant asserts that he placed the
parcel on the desk of the route where it belonged, wrote it up on the appropriate forms, and
left for the day after he was unable to locate a supervisor as he had been trained to do. The
Removal was later reduced to a Letter of Warning.

On June 22, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases of race (Caucasian)
and age (49) as evidenced by multiple incidents including, inter alia, he was called on his
personal cell phone to determine his whereabouts and reporting time; his performance was
openly discussed by management on the work room floor on an almost weekly basis; he
received a Letter of Warning in March 2011; he received suspensions in June 2011 and August
2011; his leave requests for medical appointments were often approved only for lunch breaks;
and on February 15, 2012, he received a Notice of Removal for a missed parcel delivery that
he had scanned as “undeliverable as addressed.”

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge. Complainant timely requested a hearing, but subsequently withdrew his
request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that management articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to the calls to his cell phone, S1 affirmed that she had
to frequently call Complainant because he did not call when he was late after expectations had
been set and his mail needed to be sent out. S1 noted that Agency policy called for carriers to
call their supervisor if they were not making their negotiated return time or not making it back
by dispatch, or to call the supervisor to arrange a pickup of their outgoing mail. Further, S1
stated that she once called him when he had only loaded parcels for the residential section and
forgot the cart of parcels for Queen Kaahumanu Center. AS added that at times it was
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necessary to call Complainant to see how he was doing on the route or if he needed anything.
Additionally, AS confirmed that she would call Complainant when he was 15-30 minutes late
returning and he failed to call as instructed.

With respect to performance discussions, S1 stated that she met with each carrier every
morning while they were at their cases to negotiate their day and to give them feedback
regarding their performance from the previous day, discussing items such as their office and
street times, whether they ran over their negotiated time, did not leave the office on time,
service point scans, and delivery confirmation scans. S1 averred that supervisors were also
required to be out on the dock while the carriers were loading to assure they were loading
correctly and there was no excessive load time, and when carriers returned the supervisor was
required to assure that carriers clocked out on time, or determine the cause if a carrier returned
late. Further, S1 maintained that any formal discussions regarding incidents that occurred on
the route or customer complaints were held in the office for privacy.

Regarding the March 2011 Letter of Warning, S1 affirmed that she issued the Letter of
Warning for safety violations when Complainant made a U-Turn with his door open and had an
accident causing $300.00 in damage. As to June 2011 Suspension, S1 stated that she issued it
after Complainant deviated from his assignment to go home to use the restroom and lost his
LLV keys. With regard to the August 2011 Suspension, S1 asserted that she issued it after
Complainant failed to lock a cluster box unit and the mail was not secured.

Finally, as to his leave requests, S1 stated that the Agency was short-staffed and Complainant,
as a Part-Time Flexible employee, would need to take pivots in overtime if there were not
enough regular carriers on the Overtime List. S1 affirmed that Complainant’s leave slip on
February 23, 2012, was approved only for lunch break because his medical visit was scheduled
when there were no extra carriers to allow him to take the full day, and he was asked to use his
lunch break as part of the appointment instead of denying the request. S1 noted that taking
leave for medical appointments around lunch breaks had been standard practice among carriers
for years when there was insufficient staffing to accommodate leave at other times. S1 added
that Complainant’s leave slips were not returned if they were not filled out completely,
including the time of the appointment.

The Agency concluded that the alleged incidents were not sufficiently severe or pervasive to
establish a hostile work environment. Further, the Agency determined that Complainant failed
to show that the alleged incidents were based on his protected classes. As a result, the Agency
found that Complainant had not been discriminated against or subjected to a hostile work
environment as alleged. Complainant filed the instant appeal without submitting any
arguments or contentions in support.
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ANALYSIS AND FINDINGS
Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv.
(citing
, EEOC Appeal No. 01972699 (Aug. 14,
1998) McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc. ; Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.”
, 510 U.S. 17, 21 (1993)
Harris . , 510 U.S. at 22 (1993)

Here, Complainant asserted that based on his protected classes, management continuously
subjected him to a hostile work environment. Complainant has cited several incidents where
Agency officials took actions that seemed adverse or disruptive to him, including, calls to his
cell phone to check on his whereabouts; open performance discussions on the workroom floor;
he was issued discipline in March, June, and August 2011; his leave requests were approved
only for lunch breaks; and he received a Notice of Removal in February 2012. The
Commission finds that Complainant has not shown that he was subjected to a hostile work
environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency's actions were based on
discriminatory animus. More specifically, as to the calls to his cell phone, S1 stated that she
called frequently because Complainant did not call to inform the supervisor that he would be
late and that his mail needed to be sent out. ROI, at 100. In addition, S1 called him once
because he forgot his cart of parcels for Queen Kaahumanu Center and did not initially return
to pick it up. Id. S1 added that management has made calls to all carriers who failed to make
the negotiated return time or for any reason regarding the timely delivery or return of mail.
Id. at 101. With regard to performance discussions, S1 maintained that she met with each
carrier at their cases every morning to negotiate their day and to give performance feedback.
Id. S1 stated that any formal discussions about incidents on the route or customer complaints
were held in the office for privacy. Id

.
Regarding the March 2011 Letter of Warning, S1 stated that she issued it after he was
observed making a U-Turn with his vehicle door open on one occasion and for causing
$300.00 in damage to his vehicle after colliding with a tree on another occasion. ROI, at 102,
142. As to the June 2011 Seven-Day No Time-Off Suspension, S1 confirmed that she
disciplined Complainant after he deviated from his assignment to use the restroom at his house
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and lost his vehicle keys. ROI, at 103. With regard to the July 2011 14-Day No Loss of Time
or Pay Suspension, S1 confirmed that she disciplined Complainant after he failed to lock a
cluster box unit, leaving mail unsecured. Id

. at 103, 146.
As to his leave requests, S1 confirmed that Complainant’s leave request slips were not returned
if they were not filled out completely. ROI, at 103. In addition, S1 stated that many of
Complainant’s leave requests were disapproved based on the schedule, because his medical
visits were scheduled when there were no extra carriers to cover his absence for the full day.
Id. at 103. To assist him in keeping his appointments, S1 asked Complainant to utilize his
lunch as part of the appointment. Id

. at 103-04.
Finally, as to the February 15, 2012 Notice of Removal, S1 explained that Complainant
returned from the street on January 6, 2012, and did not notify her of a missing package.
ROI, at 105. The package was a delivery confirmation piece, and Complainant intentionally
scanned it as “undeliverable as addressed,” and left it on the route’s edge. Id. After the
customer complained about not receiving the package, S1 questioned Complainant about it and
he stated he realized he missed the parcel after unloading the truck. Id. Complainant claimed
that he had been previously instructed by AS to scan an item as “undeliverable as addressed”
when he missed a confirmation parcel; however, AS denied giving Complainant such
instructions. Id. Based on the severity of the offense and Complainant’s prior disciplinary
history, S1 issued the Notice of Removal. Id. The Removal was later reduced to a Letter of
Warning. Id

. at 106.
As Complainant chose to withdraw his request for a hearing, the Commission does not have
the benefit of an Administrative Judge's credibility determinations after a hearing; therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented.
The Commission finds that there is no persuasive evidence in the record that Complainant’s
protected classes played a role in any of the Agency’s actions. Further, to the extent that
Complainant is alleging disparate treatment with respect to his claims, the Commission finds
that he has not shown that the Agency’s reasons for its actions were a pretext for unlawful
discrimination. As a result, the Commission finds that Complainant has not established that he
was subjected to discrimination or a hostile work environment as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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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
February 11, 2015