Floyd C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionJun 14, 20190120181673 (E.E.O.C. Jun. 14, 2019) Copy Citation 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. 0120181673 2 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 0120181673 3 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 0120181673 4 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 0120181673 5 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 Copy with citationCopy as parenthetical citation