U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marvin D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120181006
Agency No. 1K-204-0003-17
DECISION
On January 27, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 27, 2017 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Maintenance Mechanic at the Agency’s
Washington Network Distribution Center in Capital Heights, Maryland.
On March 27, 2017, Complainant filed the instant formal complaint. Complainant claimed that
he was subjected to harassment/a hostile work environment based on national origin (African-
American/Jamaican), disability, age (over 40), and in reprisal for prior EEO activity when:
1. on October 19, 2016 and dates to be provided, his clock rings have been adjusted and
his time has been disallowed;
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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2. on December 9, 2016 and date(s) to be provided, he has been placed on Emergency
Placement in an off-duty status;
3. on November 4-8, 2016, he was not provided with a time card and he had to use a
manual time card;
4. on December 20, 2016, he was issued a Letter of Warning;
5. on December 22, 2016, he was subjected to a Pre-Disciplinary Interview;
6. on December 22, 2016, he was issued a 14-day suspension;
7. on December 22, 2016, the Manager took pictures of him while he was performing
his duties;
8. on or about January 27, 2017, he was issued a 14-day suspension;
9. on March 16, 2017, he was ordered to leave work;
10. on March 21, 2017, after submitting a CA-1, Federal Employee’s Notice of
Traumatic Injury and Claim for Compensation form, management failed to provide
him with verification of receipt of his submission;
11. on March 22, 2017, after submitting a CA-1, Federal Employee’s Notice of
Traumatic Injury and Claim for Compensation form, management misplaced the
medical paperwork attached to the claim form;
12. on March 22, 2017, he was scheduled for an Investigative Interview;
13. on March 16, 2017, he was placed on Emergency Placement in an off-duty without
pay status; and
14. on June 10, 2017, he received a Letter of Decision upholding the April 18, 2017
Notice of Proposed Removal for Improper Conduct.2
After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.
In its December 27, 2017 final decision, the Agency found no discrimination based on the
evidence developed during the investigation.
2 The record reflects that claims 13 and 14 were later amended to the instant formal complaint.
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The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, Complainant claimed that he was diagnosed in March 2017 with heart issues and
depression, which he alleged were the result of work-related stress. He also asserted he had been
diagnosed with gout, which caused him pain when walking and climbing. He asserted he was
able to perform all the duties of his job and had no medical restrictions.
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.
Regarding claim 1, Complainant asserted that on October 19, 2016, and dates to be provided, his
clock rings have been adjusted and his time has been disallowed.
The Acting Manager Maintenance Operations (“Acting Manager”) (over 40, unknown
disability/national origin/prior protected activity) asserted that no management official adjusted
Complainant’s clock ring and/or disallowed his time on October 19, 2016.
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The Acting Manager further noted that Complainant did not work on October 19, 2016, because
it was his scheduled off day.
Regarding claim 2, Complainant alleged that on December 9, 2016 and date(s) to be provided, he
has been placed on Emergency Placement in an off-duty status.
The Acting Manager acknowledged placing Complainant on Emergency Placement on
December 9, 2016, for violating the Agency’s Zero Tolerance Policy. Specifically, the Acting
Manager stated that Complainant “engaged in behavior and conduct that was deemed to be
hostile, intimidating and threatening toward me on 12/09/16.” The Acting Manager stated at that
time Complainant entered the Maintenance Supervisor office and walked over to the desk in
front of copy machine where she and the Acting Supervisor were having a discussion. The
Acting Manager stated that after approximately two minutes, she walked out of the office and
noted Complainant was still standing there and she asked him if he needed to see her and he
“stated in a derogatory manner, ‘I don’t need shit from you.’” He then looked in [Acting
Supervisor’s] direction and stated ‘I need to see [a named shop steward].’ I proceeded to walk
out of the office, at which time [Complainant] walked out as well, stating again, ‘I don’t need
shit from you.’”
The Acting Manager stated that she then asked Complainant to stop cursing at her and he
continued again, saying ‘you are shit’…I started again to the complainant to stop cursing at
me…[Complainant] stared at me harshly and pushed pass me stating, ‘I ain’t Wall’s [?] turning
around shouting back at me several times using derogatory language ‘you are a wrench.’”
The Acting Manager stated that she then notified Complainant in the present of the union
representative and Postal Police that she was putting him on Emergency Placement for
unsatisfactory conduct for violating the Zero Tolerance policy.
Regarding claim 3, Complainant alleged that on November 4-8, 2016, he was not provided with
a time card and he had to use a manual time card.
The Acting Manager noted that on November 3, 2016, Complainant retrieved his time card from
the designated time card rack and used it to begin his tour. The Acting Manager stated that
Complainant was responsible for placing his time card back in the time rack after clocking in and
as a result, Complainant failed “to make the required remainder of his clock rings for the shift,
out to lunch, into lunch and end tour with his time badge. Complainant was asked why he did
not complete his required clock rings. Complainant informed management that he did not have
his time badge. Complainant was informed a replacement badge would be ordered.”
Regarding claim 4, Complainant claimed that on December 20, 2016, he was issued a Letter of
Warning.
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The Acting Manager Operations Support/Supervisor Maintenance Operation (“Acting Manager
2”) (over 40, unknown disability/national origin/prior protected activity) stated that during the
relevant period, Complainant did not receive a Letter of Warning.
The Acting Manager asserted that Complainant was not at work on December 20, 2016 and that
he was not issued a Letter of Warning.
Regarding claims 5 and 6, Complainant asserted that on December 22, 2016, he was subjected to
a Pre-Disciplinary Interview and issued a 14-day suspension.3
The Acting Manager 2 stated that she conducted a Pre-Disciplinary Interview with Complainant
for violating the Zero Tolerance Policy. The Acting Manager 2 stated that Complainant’s
conduct and threatening remarks created a hostile work environment. Furthermore, the Acting
Manager 2 stated that on December 22, 2016, she issued Complainant a 14-day suspension for
his conduct toward a management official.
Regarding claim 7, Complainant claimed that on December 22, 2016, the Manager took pictures
of him while he was performing his duties.
The Acting Manager denied taking pictures of Complainant while he was performing his duties
because he did not report for duty on December 22, 2016.
Regarding claim 8, Complainant alleged that on or about January 27, 2017, he was issued a 14-
day suspension.
The Acting Manager maintained that on Complainant was issued a 14-day suspension dated
January 11, 2016, for unacceptable conduct that violated the Zero Tolerance Policy against her
on December 9, 2016.
Regarding claim 9, Complainant asserted that on March 16, 2017, he was ordered to leave work.
The Acting Manager explained that management did not order Complainant to leave work on
March 16, 2017. Specifically, the Acting Manager stated that at the start of Complainant’s tour,
Complainant was “presented several leave slips to sign and give back to [Acting Supervisor].
Complainant [kept] the leave slips and walked out of the maintenance shop.” The Acting
Supervisor stated that the Acting Supervisor then followed Complainant and requested again for
Complainant to hand the original copies to him. The complainant stated ‘I don’t have any
f***ing slips’ and continue to walk away.”
3 The record reflects in its instant final decision, the Agency noted that claim 6 appears to be the
same claim as claim 5, and that questions pertaining to the alleged 14-day suspension of
December 22, 2016, were sent to Agency management in error by the investigator.
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The Acting Manager stated that the Acting Supervisor notified her of the incident and his
intentions to place Complainant on Emergency Placement. The Acting Manager stated that
shortly after talking to the Acting Supervisor, Complainant returned to the Maintenance area and
“again he was asked for the original copies the leave slips. The complainant stated that he never
gave him any ‘God Damn’ slips.”
The Acting Supervisor explained that Complainant “was not ordered to leave work. He left on
his own before he was told.”
Regarding claim 10, Complainant asserted that on March 21, 2017, after submitting a CA-1,
Federal Employee’s Notice of Traumatic Injury and Claim for Compensation form, management
failed to provide him with verification of receipt of his submission.
The Acting Manager noted that on March 22, 2017, Complainant’s union steward presented
Complainant’s CA-1 to a management official and “was provided a copy of the complainant’s
verification of receipt of submission to the complainant. The complainant was not present on
March 21st and or on March 22, 2017.”
Regarding claim 11, Complainant claimed that on March 22, 2017, after submitting a CA-1,
Federal Employee’s Notice of Traumatic Injury and Claim for Compensation form, management
misplaced the medical paperwork attached to the claim form.
The Acting Manager asserted that no management official misplaced Complainant’s medical
paperwork “upon receiving it from Complainants [union steward]. All paperwork obtained on
March 22, 2017 was maintained.”
Regarding claim 12, Complainant alleged that on March 22, 2017, he was scheduled for an
Investigative Interview.
The Acting Manager 2 maintained that she scheduled Complainant for a Pre-Disciplinary
Interview because he was placed on emergency placement for engaging in unacceptable conduct.
She averred the Pre-Disciplinary Investigation was an opportunity for Complainant to explain his
conduct and ensure he understood his behavior was unacceptable.
Regarding claim 13, Complainant alleged that on March 16, 2017, he was placed on Emergency
Placement in an off-duty without pay status.
The Acting Manager stated that on March 17, 2017, the Acting Supervisor placed Complainant
on Emergency Placement and that she was the concurring official. The Acting Manager stated
that Complainant was notified that he was being placed on Emergency Placement for engaging in
improper conduct that was “threatening and intimidating” towards the Acting Supervisor on
March 16, 2017.
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The Acting Supervisor acknowledged Complainant used “abusive language [and a] threatening
manner” toward him.
Regarding claim 14, Complainant alleged that on June 10, 2017, he received a Letter of Decision
upholding the April 18, 2017 Notice of Proposed Removal for Improper Conduct.
The record reflects that on April 18, 2017, the Acting Manager 2 issued Complainant a Notice of
Proposed Removal for Improper Conduct. Specifically, Acting Manager 2 determined that
Complainant exhibited inappropriate conduct on March 16, 2017, when he created a hostile work
environment, cursed and attempted to intimidate the Acting Supervisor.
The record contains a copy of the April 18, 2017 Notice of Proposed Removal. Therein, Acting
Manager 2 noted that on March 16, 2017, Complainant was in Maintenance when the Acting
Supervisor attempted to retrieve three PS Form 3971 “Request for or Notification of Absence”
that he gave to him earlier for his signature. Acting Manager 2 noted that when the Acting
Supervisor asked Complainant for the original copy, Complainant cursed at him and when
Complainant was asked for the second time about the leave slips “he became loud and your
aggressively used profane language again towards [Acting Supervisor] regarding the ‘God
dammed leave slips.’ Your actions in this instance were unprovoked and unjustified.”
Thereafter, Complainant was placed in an off-duty status pending investigation in this matter.
The Acting Manager 2 noted that on March 22, 2017, a letter scheduling for an investigatory
interview was sent to Complainant’s address of record but he failed to respond to the notice. The
subject letter placed Complainant on notice that failure to respond would force the Acting
Manager 2 to make a decision based solely on the information she had.
Furthermore, the Acting Manager 2 determined that Complainant’s actions “as indicated above
are in direct conflict with the Postal Service position relative to threats and violence in the
workplace.” Acting Manger 2 also determined that Complainant was in violation of the
following Sections “665.16 “Behavior and Personal Habits” and 665.24 “Violent and/or
Threatening Behavior” of the Employee and Labor Relations Manual and the Zero Tolerance
Policy.
Moreover, the Acting Manager 2 stated that Complainant’s national origin, disability, age and
prior protected activity were not factors in her decision to issue him a Notice of Proposed
Removal for Improper Conduct.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.
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Harassment/Hostile Work Environment
Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v.
United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v.
Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
To the extent Complainant is also alleging he was subjected to discriminatory harassment as a
result of the incidents discussed above, 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 bases -- in this case, national origin,
disability, age and retaliation. Only if Complainant establishes both of those elements, hostility
and motive, will the question of Agency liability present itself. Here, the evidence simply does
not establish that the incidents occurred as alleged by Complainant and/or occurred because of
his national origin, disability, age and retaliation. A case of 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 protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (September 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final decision 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.
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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. 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
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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
June 25, 2019
Date
