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

Equal Employment Opportunity Commission

Oct 27, 2017

0120151561 (E.E.O.C. Oct. 27, 2017)

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

Philip H.,1
Complainant,

v.

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

Appeal No. 0120151561

Hearing No. 520-2014-00413X

Agency No. 1B-072-0030-13

DECISION

On March 20, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 12, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. 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 General Expeditor,
PS-07, at the Agency’s Processing & Distribution Center in Kearny, New Jersey.

On August 13, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
subjected him to discriminatory harassment on the bases of his race (Caucasian), color (white),

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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disability (chronic obstructive pulmonary disease, asthma, bronchitis), age (48), and in reprisal
for his prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act when:

1. A coworker was observing Complainant in the performance of his duties.

2. Complainant has been subjected to ongoing profanity from his Manager.

3. On May 4, 2013, Complainant was told that his position no longer existed based on
the recommendation from his Supervisor that there was no need for his position.

4. On May 29, 2013, Complainant received a notice that effective July 1, 2013, his bid
position would be abolished.

5. On or around July 6, 2013, Complainant’s work hours and nonscheduled days were
changed.

6. Since on or around May 29, 2013, a coworker has been performing the duties of
Complainant’s former position which he was told no longer existed.

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). Complainant timely requested a hearing.
Over Complainant’s objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on January 23, 2015.

The AJ found that no discrimination occurred. The AJ noted that Complainant has filed three
prior EEO complaints, the most recent filing being on April 14, 2011. The AJ observed that
Complainant’s medical conditions are not disabilities that keep him from performing his position
duties. According to the AJ, Complainant has no medical restrictions for his duty assignment.
With respect to the profanities at issue, the AJ stated that the Manager (African-American, brown
skin, 39 years of age) was accused of mostly using the term “fuck” or some variation thereof,
and that both white and black employees were subjected to such language.

The AJ stated that several employees at the work facility were notified around the same time as
Complainant that their beginning tour time would change. The AJ noted that on April 25, 2013,
the Network Specialist sent an e-mail to the Lead Senior Manager questioning the efficiency and
usefulness of using the IMF bullpen when staging mail and that he suggested a process to be
implemented where the bullpen would not be utilized. The AJ observed that the Agency stated
that it experienced great improvement in service and arrival of mail going to other plants once it
no longer had to process mail through the bullpen. Complainant was reassigned after the bullpen
was eliminated. The AJ noted that on June 6, 2013, Complainant wrote to the Plant Manager
concerning his belief that he was being discriminated against because his position has been
abolished. The AJ stated that the Plant Manager responded that Complainant’s position was
abolished due to operational changes and a need to improve operational efficiency. The AJ
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observed that the Lead Senior Manager stated the decision to eliminate the bullpen was based
strictly on the need to improve service to internal and external customers.

The AJ found that Complainant failed to establish a prima facie case of a hostile work
environment based on any of the alleged bases. The AJ stated that Complainant did not produce
evidence indicating that any of the management officials at issue held any animosity toward him
based on his membership in any of the protected groups. The AJ noted that the Manager
allegedly uttered a “fucking Mafia” remark which may have been related to Complainant’s
Italian heritage. However, the AJ reasoned that this type of comment, though unprofessional,
only happened once and with no resulting concrete action, thus it was not sufficient to create a
harassing environment. Moreover, the AJ observed that Complainant did not claim that the
Manager made any derogatory comments, remarks, or jokes about his color, race, age, or prior
EEO activity while using or in addition to the profanity.

With respect to Complainant’s claim that a coworker was observing him on approximately six
occasions over a two-month period while he worked, the AJ stated that Complainant presented
no evidence to support his belief that someone in management instructed the coworker to watch
him. The AJ further stated that Complainant did not establish how having a coworker observe
him while he worked harmed him or created an objectively humiliating environment that
interfered with his ability to perform his duty.

As for the abolishment of Complainant’s bid position and the change in his schedule, the AJ
found that the Agency offered legitimate, nondiscriminatory reasons why Complainant’s job was
abolished and his hours and off days were changed. The Agency stated that Complainant’s
jobsite, the IMF bullpen, was eliminated due to operational needs and a desire to streamline
operations and boost efficiency. The AJ noted that the transition did not occur as smoothly as
the Agency had hoped, but once fully implemented all personnel who worked in the bullpen
were reassigned and had their hours changed. The AJ found that Complainant failed to establish
that the abolishment of his bid position and the change in his schedule was harassing conduct
given that several other employees, many of whom were outside his protected groups, had their
begin time changed around the same time as Complainant. The AJ found that Complainant
failed to show that the Agency’s reasons were pretext intended to mask discriminatory
motivation.

With regard to Complainant’s reprisal claim, the AJ found that Complainant failed to set forth a
prima facie case of reprisal. The AJ acknowledged that Complainant had engaged in prior EEO
activity and some of the relevant management officials were aware of his prior EEO activity.
However, the AJ found that the incidents raised by Complainant amounted to no more than
trivial annoyances of the workplace and the time between Complainant’s prior EEO activity and
the adverse actions was far too attenuated to establish an inference of discrimination.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that it subjected him to discrimination as alleged. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that he has medical restrictions for his new duty assignment
working on the platform. Complainant states that on December 21, 2013, he submitted a note
from his pulmonary specialist stating he should remain free from extreme temperatures which
would exacerbate his condition. According to Complainant, he received a change of assignment
dated January 29, 2014, reassigning him to the Bay 30 platform which assured he would be
exposed to extreme cold. Complainant states that he has missed more than sixty days of work
since the reassignment due to his respiratory condition. Complainant contends that the Lead
Senior Manager has exploited his respiratory condition since a January 2009 incident where he
had to be rushed to the hospital as a result of a reassignment by the Lead Senior Manager.
Complainant states that he engaged in prior EEO activity based on that incident and the Lead
Senior Manager was involved in subsequent EEO mediation.

Complainant argues that the Manager’s use of profanity was pervasive and that he used the terms
Mafia and faggot. As to the change in his tour time, Complainant claims that all of the
employees referenced by the AJ are Tour I employees and he is a Tour III employee.
Complainant states that these employees had their start time changed by one hour and remained
on Tour I. Complainant states that his start time was changed by two and one half hours with the
majority of his workday on Tour I. Complainant argues that there is no evidence there has been
an improvement in service other than the opinion of the Lead Senior Manager. Moreover,
Complainant states that the Lead Senior Manager acknowledged in his affidavit that his former
duties were still in existence more than five months after Complainant’s duty assignment was
abolished.

Complainant disputes the AJ’s statement that he offered no facts to support his claim that
someone in management instructed a coworker to observe him while he worked. Complainant
argues that in his affidavit he stated that the Manager responded to questioning by stating “I can
have whoever the fuck I want checking and verifying the mail.” Complainant claims that the
African-American coworker who was observing him continued in his position after he was
reassigned. Complainant maintains that although the Agency offers an explanation for phasing
out his work area, it has not offered reasons as to why his duty assignment was abolished or why
his hours and days off were changed. Complainant states that he was the sole employee to have
his position abolished and to have his non-scheduled days changed.

Complainant contends that the Manager and the Lead Senior Management retaliated against him
because of their involvement in his prior EEO complaints. Complainant disputes the AJ’s
characterization of his treatment and claims as trivial workplace annoyances. Complainant
argues that his reassignment to the platform was detrimental to his health. Complainant
maintains that this is the third occasion where attempts were made to abolish his duty assignment
and reassign him, and that each time the Manager and Lead Senior Manager were involved, and
each time he was replaced in his duties by the African-American comparison. Complainant
argues that there were only 24 days from the time of his initial EEO contact and the date of his
position being abolished, and slightly less than two months from the time of his initial EEO
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contact and his change of assignment, hours and days off. Complainant also challenges the AJ’s
handling of certain aspects of this matter. Complainant points to the AJ not addressing his
Response to the Agency’s Motion for a Decision Without a Hearing and his Motion to Strike the
Agency’s Exhibits.

In response, the Agency asserts that Complainant is challenging some of the AJ’s findings of fact
regardless of their materiality, but fails to demonstrate how the disputed facts establish severe or
pervasive conduct or infer a causal connection to his protected classes. With regard to
Complainant’s argument that he has medical restrictions for his subsequent assignment on the
platform, the Agency asserts that there is no dispute that during the relevant period of the alleged
harassment, Complainant was assigned to the bullpen and he had no work restrictions. As for
Complainant’s contention that other employees who were notified of a beginning tour time
change were on other tours, the Agency states that the specific tour of Complainant and other
employees impacted by the abolishment of the bullpen is irrelevant.

The Agency notes that Complainant also challenges the success of the operational change. The
Agency states that this is irrelevant because the relevant inquiry is whether the operational
change was effected to create an abusive working environment for Complainant based on one of
his protected classes. The Agency also rejects Complainant’s argument that the Lead Senior
Manager did not furnish a reason for changing his rest days and start time. The Agency asserts
that the IMF bullpen was eliminated and the duties performed there were eliminated as well,
thereby causing those who were working there to have to be reassigned. The Agency states that
Complainant’s entire work day had been spent in the bullpen.

As to Complainant’s contention that work was still being performed in the bullpen almost six
months after he was reassigned from the position, the Agency states that the bullpen was
subsequently utilized by the Manager without authorization and he was reprimanded for doing
so. The Agency argues that for the first time on appeal Complainant claims that the Manager’s
use of profanity was pervasive and that Complainant previously only identified two incidents, in
March and April 2013 respectively, where the Manager used profanity. The Agency maintains
that the remarks at issue were stray comments made to a group of employees, not just
Complainant, and were not sufficiently severe or pervasive to constitute a hostile work
environment.

The Agency asserts that even if the Lead Senior Manager was aware of Complainant’s prior
informal complaint, this prior EEO activity was four years before the current matter and thus is
too remote to infer retaliatory animus. Complainant contends that temporal proximity exists
between his initial EEO Counselor contact on May 5, 2013, and the letter abolishing his position
dated May 29, 2013. The Agency challenges this contention noting that Complainant was not
interviewed by an EEO Counselor until June 12, 2013, fourteen days after he received the letter
abolishing his position. Further, the Agency asserts that communications between Agency
officials including the Lead Senior Manager establish that the Lead Senior Manager accepted the
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recommendation to abolish the bullpen about a week before Complainant initiated contact with
an EEO Counselor.2

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at
802 n. 13.

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant claims that he was subjected to harassment by management officials. To establish
this claim, 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 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., 510 U.S. 17, 21 (1993); EEOC
Enforcement Guidance at 6 (March 8, 1994).

Initially, we observe that Complainant is critical of the AJ’s handling of certain issues in this
matter. Upon review of the record, we discern no error or bias evidenced by any of the AJ’s
actions. We find that the AJ acted within her discretion in her handling of and disposition of this
complaint.

2 We note that Complainant submitted an additional statement in August 2017 in support of his
appeal. The Agency requested that the Commission disregard the submission. As it was
submitted past the 30-day time frame for briefing, we decline to consider Complainant’s
additional argument.
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Upon review of Complainant’s claim concerning a coworker watching him work on several
occasions, we find that this action by itself, while understandably annoying, is not of sufficient
severity or pervasiveness to constitute harassment. As for the profanity uttered by the Manager,
the alleged remarks appear to have not been directed at Complainant for the most part and do not
appear to have been directed at him based on his protected bases. We find that the profanities at
issue were not directed at Complainant as a form of harassment based on his membership in any
of his protected groups.

With regard to the recommendation that Complainant’s position be abolished and the subsequent
abolishment of his General Expeditor position, we agree with Complainant that this action
cannot be considered a trivial workplace annoyance. However, the Agency presented a
legitimate, nondiscriminatory reason for its decision to abolish Complainant’s bid position. The
Agency explained that Complainant’s jobsite, the IMF bullpen, was eliminated due to
operational needs and a desire to streamline operations and boost efficiency. The Agency stated
that the decision to eliminate the bullpen was based strictly on the need to improve service to its
internal and external customers. We find that Complainant has failed to show that this
explanation is pretext intended to mask intent to harass Complainant based on any of his
protected groups.

With respect to Complainant’s work hours and non-scheduled days being changed on July 6,
2013, we observe that the other employees who worked in the bullpen also had their hours
changed. Complainant was working on a different Tour than these other employees and
therefore they were not similarly situated. Thus, it cannot be said that Complainant’s non-
scheduled days being changed was less favorable treatment than that received by similarly
situated individuals outside his protected groups. Complainant also argues that the change in his
work hours and non-scheduled days was attributable to reprisal. Changes needed to be made to
all bullpen employees’ schedules in light of the deactivation of the bullpen. All of
Complainant’s work day was spent in the bullpen. We are not persuaded that the change in
Complainant’s work hours and non-scheduled days was attributable to reprisal. On appeal,
Complainant also challenges his reassignment to the platform, and maintains that exposure to
extremely cold temperatures have adversely impacted his respiratory condition. We note that
this was not one of the accepted issues in Complainant’s complaint and we cannot adjudicate it at
this time.3

Finally, Complainant argues that since his position was abolished, a coworker has for more than
five months been performing the duties of his former position, which he was told no longer
existed. The Agency acknowledged that the bullpen was subsequently utilized by the Manager
without authorization and that the Manager was reprimanded for doing so. We find that although
the Agency demonstrated inconsistency by continuing to make use of the bullpen, we do not

3 Complainant is advised that if he wishes to pursue a denial of a request for reasonable
accommodation through the EEO complaint process, he should promptly raise the issue with an
EEO Counselor.
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consider this to be strong evidence of intent to harass Complainant based on any of his protected
categories. Upon consideration of all of the alleged incidents at issue, we find that Complainant
has not established that these incidents, whether evaluated individually or cumulatively, are of
sufficient severity or pervasiveness to constitute a hostile work environment. Further, we find
that Complainant has not established that any of the alleged incidents occurred based on the
Agency’s intent to discriminate against Complainant on any of the alleged bases.

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 order, because the Administrative Judge’s issuance of summary judgment was
appropriate and a preponderance of the record evidence 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. 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.
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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

October 27, 2017
Date