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

Equal Employment Opportunity Commission

Sep 11, 2014

0120123163 (E.E.O.C. Sep. 11, 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
(Southeast Area),
Agency.

Appeal No. 0120123163

Hearing No. 490-2010-0020X

Agency No. 1H-381-0010-10

DECISION
On August 3, 2012, Complainant filed an appeal from the Agency’s June 22, 2012 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 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
At the time of events giving rise to this complaint, Complainant worked as a part-time Mail
Processing Clerk at the Agency facilities in Memphis, Tennessee. On April 19, 2010,
Complainant filed an EEO complaint alleging that the Agency harassed him on the basis of sex
(male) when:

1. on November 5, 2009, a female co-worker snatched a tub from his hands;
2. on December 10, 2009, he was put off the clock for failing to follow
instructions after he refused to acknowledge safety related paperwork;
3. on December 13, 2009, he reported being locked out of the Registry Room but
management refused to listen and instructed him to return to the Registry Room;
4. on January 2, 2010, he was reassigned from the Registry Room to the West
Dock because it was cold outside;
5. on January 16, 2010, he was not informed not to drink the water from the water
dispensers at the Jet Cove Annex; and
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6. on April 2, 2010, he was given a discussion for not being at his work station.

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. When Complainant did
not object, the AJ assigned to the case granted the Agency’s motion for summary judgment and
issued a decision on June 4, 2012. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected him to harassment as
alleged.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp.

, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case.
To prove his harassment claim, Complainant must establish that he was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of a protected basis, i.e.

, in this case, sex. Only if Complainant
establishes both of those elements, does the question of Agency liability present itself.
Upon review of the record, we agree with the AJ that no reasonable fact finder could find in
Complainant’s favor.1

1 We note that some of the alleged incidents: the paperwork; the cold temperature; and the
water, concerned what Complainant believed were safety violations. We, along with the AJ,
find their connection to the claim of sex based harassment tenuous.
The alleged incidents were neither severe nor pervasive enough to
create a hostile and abusive work environment. We note also that management provided
explanations for each incident. For example, Complainant was locked out of the Registry
Room because he refused to sign in, a requirement of all employees using that room, and
Complainant does not dispute that he refused to sign in. In addition, he was assigned to the
West Dock on the day in question because the female employee on the West Dock had to go to
the South Dock to handle Drop Shipments, a job duty Complainant was not trained to do. We
note that the water was tested at the Jet Cove Annex after Complainant claimed it was unsafe
to drink, and it was found perfectly safe. Complainant was disciplined for being insubordinate
when asked to acknowledge paperwork. Although Complainant did not believe his behavior
was insubordinate, he does not dispute that he refused to acknowledge the paperwork. Finally
we note that there is simply no evidence that management’s actions were motivated by
Complainant’s sex. As a result, the Commission finds no basis to disturb the AJ's summary
judgment decision, and we AFFIRM the Agency’s final order.
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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.

0120123163

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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
September 11, 2014