Floyd C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jun 14, 2019

0120181673 (E.E.O.C. Jun. 14, 2019)

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

Floyd C.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 0120181673
Agency No. 4B060012617

DECISION

On March 21, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 19, 2018, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the final agency decision, (FAD) correctly determined that Complainant did not establish
that he was subjected to discriminatory harassment based on disability and retaliation (prior EEO
activity) when:

1. On June 27, 2017, S1, the Supervisor, Customer Services, wanted him to sign a PS Form
3971 that he, S1, had not completed accurately;
2. On June 27, 2017, while he was riding on his route, S1 took his mail truck without his
knowledge while he was on lunch, which also prevented him from taking his medication;
3. On October 10, 2017, he became aware that S1 displayed a trophy at his desk on which he
had put a piece of paper labeling the trophy as “Carrier of the Year – [Complainant’s
name]” in an effort to ridicule him.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at
the Agency’s Wakefield Post Office facility in Wakefield, Rhode Island. On October 21, 2017,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of disability (physical and mental) and reprisal for prior protected EEO activity under the
Rehabilitation Act, as set forth above.

Claim #1:

Complainant alleged that S1 wanted him to sign PS Form 3971 that S1 had generated and that was
not filled out correctly. He explained that the form did not have his Family and Medical Leave
Act (FMLA) number on it; did not have the correct type of leave; and was not signed by S1.
Complainant stated that he handed S1 a form that he had filled out and that S1 refused to accept it
because he, S1, had not filled it out. Complainant stated that he then went on his route to case his
mail but that this issue led to S1 being out on the street with him later that day. Complainant
asserted that S1 violated Section 513.342 of the Employee and Labor Relation Manual (ELM),
which stated that the supervisor is responsible for approving or disapproving requests for sick leave
by signing the PS Form 3971.

S1 explained that Complainant was using dependent care to cover his tardiness. He denied
performing a walk with Complainant because of the conflict over the PS Form 3971, asserting that
he walked with Complainant because it is a supervisor’s responsibility to ensure the efficiency of
the operation. S1 added that carriers should understand that they can be supervised at any time in
the performance of their job both in the office and on the street and concluded that it is not a
violation of the collective bargaining agreement to have employees sign their PS Form 3971s.

Claim #2:

Complainant alleged that S1 performed an unscheduled walk, which led to him taking
Complainant’s vehicle with his medication in it. Complainant claimed that the walk was solely in
retaliation for the Form 3971 incident, claim 1, as there was no discussion regarding the mail
volume and route times during the walk. Complainant asserted that he was in shock when he
discovered that his vehicle was gone; and that he could not get in touch with S1. He stated that
the vehicle returned 30 minutes later but that, in the interim, he was not able to take his medication
with food as required, which caused him to become physically and mentally sick and barely
functional. Complainant also asserted that S1 was aware that he needed to take his medication
with food because this issue had been the subject of a previous EEO complaint. He concluded that
S1 failed to treat him with dignity and respect.

S1 stated that he performed an observation on Complainant; and that he had a spare key that he
used all day long to get in and out of the truck to not interrupt Complainant’s deliveries. He
asserted that when Complainant took his lunch, he locked S1 inside of the vehicle but that when
Complainant was 10-15 minutes into his lunchtime, S1 had to go to the bathroom immediately so
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he drove to a restaurant 1 minute away and was gone for 8 minutes total. S1 asserted that he parked
in the same spot as Complainant had parked; and that 5 minutes later, Complainant came out to
the vehicle and stated that he had left his medications in the truck and he thought that the vehicle
had been stolen. He claimed that he was unaware of any medications Complainant had to take
with food; and that Complainant had not shared that information with him.

S1 testified that an earlier conflict occurred about a year earlier, when he performed an observation
on Complainant and he finished the route 2 hours early after requesting 90 minutes of auxiliary
assistance. He added that Complainant is very uncooperative on the workroom floor; that he
constantly believes that his workload is greater than what it is; and that repeated observations of
Complainant have shown that he completes is route in less than 8 hours when he requests 2 hours
of assistance.

Claim #3:

Complainant explained that he was casing mail when other carriers came to him and asked him
what he was getting a trophy for, which confused him. He asserted that he asked them what they
were talking about and they informed him that there was a trophy in S1’s office with Complainant’s
name on it. Complainant stated that he walked into S1’s office and saw a trophy that had a piece
of paper on it stating, “Carrier of the Year – [Complainant].” He maintained that he complained
to the union steward and the Postmaster, S2, that he should not have to deal with such harassment;
and that S2 agreed with him. Complainant contended that the trophy incident humiliated,
embarrassed, and shamed him in front of his coworkers, magnified the symptoms of his medical
condition, and added undue stress and anxiety. He insisted that S1 blatantly harassed him by
degrading him in front of his coworkers and bullying and belittling him.

One of Complainant’s coworkers, (C1) testified that he did not see the trophy referred to by him.

S1 asserted that he had nothing to do with this incident; that Complainant knows that another
carrier made the trophy; and that S2 removed it. He denied that Complainant’s disability and prior
protected activity were factors in any actions that he took and claimed that he was not aware that
Complainant had a physical or mental disability.

S2 asserted that he became aware of the incident when the union steward told him about the trophy,
adding that when he arrived at work on that day, he saw the trophy on the file cabinet next to S1’s
desk and asked him about it. S2 asserted that S1 told him that he knew nothing about the trophy;
and that he found out that it was left on Complainant’s case ledge the day before by another Carrier,
C2. S2 stated that he asked C2 if he had made the trophy and C2 responded that he had in fun. S2
indicated that he told C2 that his actions were inappropriate; that he had hurt Complainant’s
feelings; and that he was to cease his antics. According to S2, C2 complied with his directions.

S1 claimed that Complainant never told him that his or anyone else’s actions constituted
harassment. He asserted that Complainant did tell his union steward and S2 that he was being
harassed when he stated that two carriers were talking about him but both carriers denied the
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allegations. He noted that S2 communicated with the carrier who admitted making the sign that
was placed on the trophy.

S2 testified that Complainant does not like to be supervised by S1; that he has claimed harassment
by S1 in the past; and has grieved such claims. He explained that he was unaware of Complainant
or anyone acting on his behalf bringing any claims of harassment to the attention of any other
management official. He affirmed that he, with help from Labor Relations, investigated
Complainant’s claim of harassment and did not find any harassment but did find that the parties
both needed to exhibit restraint. He concluded that no corrective action was issued to either party.

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). 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 decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

There are no contentions on appeal.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

ANALYSIS AND FINDINGS

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on their
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the
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objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

We find that the record does not support a finding that the Agency subjected Complainant to
discriminatory harassment as he alleges. Even assuming, arguendo, that claims 1, 2, and 3 took
place, as alleged, Complainant has not demonstrated that S1’s conduct was motivated by
Complainant’s membership in a protected class, i.e., his disability or prior EEO activity. We also
find that these matters were neither severe nor pervasive enough to rise to the level of unlawful
harassment. Though Complainant may have found S1’s actions or inactions unwelcome and
uncomfortable, he did not describe any severe or pervasive conduct that would constitute unlawful
harassment or that in any way interfered with the terms and conditions of his employment based
on his protected classes. The Commission notes that Title VII is not a civility code. Rather, it
forbids “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
0120181673 6
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

Carlton M. Hadden, Director
Office of Federal Operations
June 14, 2019
Date