Roderick P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Apr 3, 2019

0120180122 (E.E.O.C. Apr. 3, 2019)

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

Roderick P.,1
Complainant,

v.

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

Appeal No. 0120180122

Agency No. 4C080002117

DECISION

On October 5, 2017, 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
September 12, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier
Technician, Q-1, at the Agency’s Camden Annex facility in Camden, New Jersey. On February
20, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him
and subjected him to a hostile work environment on the basis of disability (bursitis, left shoulder)
when:

1. on November 14, 2016 he became aware his salary had changed several times over
the past several months;
2. management was discussing his FMLA (Family and Medical Leave Act) status in
front of other employees;

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. management instructed him to work overtime causing him to miss his physical
therapy appointments;
4. he was told not to case a “third bundle” of mail when others were allowed; and
5. he was forced to sign attendance policies and pre-discipline papers for “calling out”
using FMLA.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
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

On appeal, Complainant contends that management officials provided contradictory statements
about their actions. Complainant argues that supporting documentation in the record shows that
management discriminated against him. Complainant believes that co-workers were afraid to
speak up in fear of retaliation. Accordingly, Complainant requests that the Commission reverse
the final decision.

ANALYSIS AND FINDINGS

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”).

Hostile Work Environment

In order to establish a claim of harassment, Complainant must show that: (1) he belongs to the
statutorily protected classes or engaged in prior EEO activity; (2) he was subjected to unwelcome
conduct related to his membership in those classes or his prior EEO activity; (3) the harassment
complained of was based on those classes or that activity; (4) the harassment had the purpose or
effect of unreasonably interfering with his work performance 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).

Here, Complainant asserted that based on his protected classes, management subjected him to a
hostile work environment. Complainant alleged several incidents of what he believed to be
discriminatory harassment.
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The Commission finds that the record evidence supports that Complainant has not shown that he
was subjected to conduct sufficiently severe or pervasive to create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a
hostile work environment, Complainant failed to show that the Agency's actions were based on
discriminatory animus. The record reflects that the alleged incidents were more likely the result
of routine supervision, personality conflicts, and general workplace disputes and tribulations as
discussed below.

Claim (1) (Change in Salary)

According to the Agency, in November 2016, Complainant, as a result of a voluntary bid he
submitted, was moved from a Carrier Tech Q-2 to a Carrier Tech Q-1 position. This change to a
lower-level position resulted in a reduction in Complainant’s rate of pay. ROI Affidavit B, at 4-6.
This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant contends that
his voluntary bid should not have resulted in a reduction in his pay level. Complainant’s position
is not well taken. Agency regulations provide that “protected rate” provisions do not apply to
reductions in grade where the employee involved occupied the previous position for less than one
year. ROI Ex. 24 at 3. Here, Complainant had occupied the Carrier Tech Q-2 position from
December 2015 to October 2016 and therefore was not eligible for a protected rate. Complainant
has failed to show that the Agency’s explanation for its action was a pretext designed to conceal
discriminatory animus.

Claim (3) (Physical Therapy Missed Because of Mandatory Overtime)

Complainant alleges that he was forced to miss scheduled physical therapy sessions because he
was required to work overtime. According to Complainant, at times he was unable to complete
delivery of his route within his normal eight-hour schedule and was required to work overtime to
complete the route. On several occasions this resulted in Complainant missing an appointment for
physical therapy. Importantly, the Commission notes that Complainant expressly denied that he
was alleging that the Agency denied him reasonable accommodation regarding this claim.
Furthermore, there is no evidence establishing that Complainant submitted a request a reasonable
accommodation for his physical therapy or that the Agency had any reason to know that he required
such a reasonable accommodation. Nonetheless, Complainant’s supervisor stated that he made
every effort to ensure that Complainant finished his work to make the appointments. Further,
management officials noted that employees were expected to schedule appointments outside of
work hours or request leave in advance for approval.

Claim (4) (Told Not to Case Mail)

Complainant alleged that his manager instructed him not to case mail that was being cased by the
carriers on routes next to his and to carry the mail as a third bundle (which was carried separate
from cased or organized mail in a satchel).
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Complainant averred that his manager gave this instruction without reason. The manager denied
issuing Complainant these instructions or telling him to hurry up and hit the streets. There is no
corroborating evidence that this incident occurred.

Claim (5) (Disciplined for Using FMLA Leave)

Complainant alleged that when he returned to work after taking FMLA leave, he was forced to
read certain Agency policies concerning FMLA leave and to sign papers acknowledging that he
had been informed about the regulations. To the extent that Complainant is seeking relief for a
violation of the FMLA he fails to state a claim the Commission can adjudicate. The EEOC has no
jurisdiction over claims based on the FMLA. Stensgard v. U.S. Postal Serv., EEOC Appeal No.
0120122478 (Sept. 26, 2012) (finding a claim challenging denial of FMLA rights to be a collateral
attack on the FMLA process, which is regulated by the Department of Labor, and outside the
jurisdiction of the EEOC). Nonetheless, while the record indicates that Complainant received
copies of the attendance policies, management officials denied that Complainant was ever
disciplined for leave. Additionally, management officials noted that all employees were subjected
to attendance reviews and asked to sign attendance policies.

After reviewing the record and considering the arguments on appeal, the Commission finds that
Complainant has not shown that he was subjected to a discriminatory hostile work environment.
Furthermore, to the extent that Complainant is alleging disparate treatment with respect to his
claims, the Commission finds that he has not shown that the Agency's reasons for its actions were
a pretext for unlawful discrimination. Accordingly, the Commission finds that Complainant has
not established that he was subjected to discrimination or a hostile work environment as to all
claims alleged.

Claim (2) (FMLA Confidentiality Violation)

Finally, Complainant contends that a supervisor discussed his confidential medical information in
the presence of four of his coworkers, in violation of his rights under the FMLA.2 The
Rehabilitation Act provides that information obtained regarding the medical condition or history
of any employee shall be treated as a confidential medical record and there are only limited
exceptions to this regulation. 29 C.F.R. § 1630.14. By its terms, this requirement applies to
confidential medical information obtained from “any employee,” and is not limited to individuals
with disabilities. Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000).

Here, the evidence does not establish that any improper disclosure ever occurred. Complainant
has no firsthand knowledge of the subject. He did not witness the alleged discussion. Two of the
identified coworkers deny ever overhearing any disclosure of medical information about
Complainant. ROI, Affidavits J, K. The two other named coworkers provided no evidence
concerning this matter. Thus, Complainant has failed to establish that any improper disclosure of
confidential medical information occurred.

2 The Commission notes again that we have no jurisdiction to adjudicate a claim under the FMLA.
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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
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.
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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

April 3, 2019
Date