Kieth L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 12, 2019

2019001517 (E.E.O.C. Sep. 12, 2019)

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

Kieth L.,1
Complainant,

v.

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

Appeal No. 2019001517

Hearing No. 480-2016-00990X

Agency No. 1F-901-0070-16

DECISION

On September 11, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 16, 2018 final action 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.

BACKGROUND

During the period at issue, Complainant worked as a Mail Processing Equipment Mechanic at the
Agency’s Los Angeles Processing and Distribution Center (P&DC) in Los Angeles, California.

On May 24, 2016, Complainant filed the instant formal complaint. Complainant claimed that he
was subjected to harassment/a hostile work environment based on race (Caucasian) when:

1. on January 10, 2016, his supervisor questioned him about why he did not respond to a
call on the Low Cost Tray Sorter (LCTS);
2. on January 11, 2016, the supervisor told him that he and upper management had
decided not to allow him to work on the Flat Sorters, because of his work performance;

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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3. on an unspecified date, the supervisor accused him of trying to put his work on someone
else; and

4. on an unspecified date, when the supervisor was still an Acting Supervisor (204B), he
tried to evaluate Complainant on work for which he had not been trained.

After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a
Decision Without a Hearing. On August 3, 2018, the AJ issued a decision by summary judgment
in favor of the Agency. In the instant final action, the Agency adopted the AJ’s decision.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. Here, Complainant
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

To establish a claim of discriminatory hostile environment harassment, Complainant must show
that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form
of unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, 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 his protected basis – in this case, his race. Only if Complainant
establishes both of those elements – hostility and motive – will the question of Agency liability
present itself. Here, as discussed below, Complainant simply has provided inadequate evidence
to support his claim that his treatment was the result of his race.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the formal complaint:
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Regarding claims 1 and 2, Complainant asserted that on January 10, 2016, his supervisor
questioned him about why he did not respond to a call on the Low Cost Tray Sorter and on January
11, 2016, the supervisor told him that he and upper management had decided not to allow him to
work on the Flat Sorters because of his work performance.

It is undisputed that on January 10, 2016, Complainant did not answer a service call on Low Cost
Tray Sorter. The record reflects that when the supervisor asked why Complainant did not answer
the service, Complainant explained that he was already working on Automatic Tray Unsleever.
Complainant also stated that he was the only mechanic doing preventative maintenance and
answering calls. The supervisor informed Complainant if he could not handle the workload, he
would take him off the assignment. The record further reflects that Complainant did not
communicate any objections to being reassigned.

On January 11, 2016, Complainant asked the supervisor if he was going to change his work
assignment. The supervisor responded that he had no other place for him to work. The AJ noted
that there was no evidence in the record that Complainant was subsequently reassigned.

The supervisor (Hispanic) explained that he did not ask Complainant why he did not answer a
service call on Low Cost Tray Sorter. Instead, the supervisor stated that he informed Complainant
that if he did not respond to the call for assistance, he would send another mechanic to assist. The
supervisor further stated, “I have to answer to my manager as to why calls are not being answered
in a timely manner. I need to gather this information from personnel assigned to the equipment to
see if additional support is needed during heavy break downs. I can only decide this after speaking
w/employee.”

Further, the supervisor denied telling Complainant that he would never assign him to the
Automated Flat Sorter Machine (“AFSM”) 100s. The supervisor stated that it would be counter-
productive not to have that option if the need were to arise. The supervisor maintained that during
a meeting with the Manager, Maintenance Operations, and Supervisor, Maintenance, a decision
was made to assign more experienced mechanics with the new mechanics “to better serve the unit
with more trained personnel.”

Regarding claim 3, Complainant alleged that the supervisor accused him of trying to put his work
on someone else.

The AJ noted that while Complainant was working on the ATU, the supervisor told him to call the
Maintenance Technical Support Center (“MTSC”) regarding computer software problems.
Complainant responded that an Electronic Technician (“ET”) needed to make that call. The
supervisor responded by asking “Are you trying to put your work off on someone else?” The
supervisor then had another mechanic make the call to MTSC.

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The supervisor stated that he does not recall this incident but noted that ETs and Mechanics “are
tasked to open help desk logs with the intention of describing the equipment problem to national
service tec[h]s that can assist us in troubleshooting a problem.”

Regarding claim 4, Complainant claimed that when the supervisor was still an Acting Supervisor
(204B), he tried to evaluate Complainant on work for which he had not been trained.

The AJ indicated that record did indicate that on an unspecified date while he was still a 204B
Acting Supervisor, the supervisor tried to evaluate Complainant twice on the “Flat Sorter A1
portion.” In the first instance, the supervisor stopped the evaluation halfway through. In the
second instance, Complainant told the supervisor that he did not know the names of all the parts
and needed help. The supervisor then decided not to complete the evaluation.

As detailed above, Complainant has failed to provide sufficient evidence to call into question the
veracity of the explanations provided by responsible management officials or otherwise indicate
that these incidents more likely resulted based on his race. Complainant is unable to meet his
burden of proving a discriminatory motive regarding the incidents making up his claim of a hostile
work environment. A claim of discriminatory harassment is precluded based on our findings that
Complainant failed to establish that any of the actions taken by the Agency were motivated by his
race. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

We AFFIRM the Agency’s finding no discrimination concerning the instant complaint because
the preponderance of the evidence of record does not establish that discrimination occurred.

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.
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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 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.

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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 12, 2019
Date