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

Equal Employment Opportunity Commission

Mar 13, 2019

2019000063 (E.E.O.C. Mar. 13, 2019)

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

Ward B.,1
Complainant,

v.

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

Appeal No. 2019000063

Agency No. 1B-031-0005-18

DECISION

On August 17, 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
July 27, 2018 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 Supervisor, Distribution Operations, EAS-17
at the Agency’s Processing and Distribution Center (PD&C) in White River Junction, Vermont.

On February 10, 2018, Complainant filed a formal complaint. Complainant claimed that the
Agency discriminated against him based on sex (male), physical disability (feet, legs), age (63),
and in reprisal for prior-protected activity when:

1) From November 15, 2017 through January 30, 2018, Complainant was sent inappropriate
emails;

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 September 27, 2017, Complainant was issued a Letter of Warning in lieu of a 7-Day
Suspension;

3) In December 2017, Complainant's request for leave was denied; and

4) In December 2017, Complainant was yelled at by the Acting Plant Manager.

After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of the right to request a hearing before an EEOC Administrative Judge. 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)., finding no discrimination.

The instant appeal followed.

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”).

We will first review the subject claims, especially those regarding emails and yelling, in the context
of harassment or a hostile work environment. Harassment of an employee that would not occur
but for the employee’s protected statuses, including disability, sex, age, or prior EEO activities, is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). To succeed in proving
any of his claims, Complainant needed to show the following four elements: (1) he was a member
of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct; (3)
the unwelcome conduct was based on his statutorily protected class; and (4) the unwelcome
conduct affected or unreasonably interfered with employment the degree it created an intimidating
or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998). Title VII anti-harassment protections do not authorize EEOC to enforce a civility
code. Oncale v. Sundowner Offshore Servs., Inc., 423 U.S. 75, 80-81 (1998).

In the instant matter, we have reviewed the documentation of emails exchanged between
Complainant, his two immediate supervisors, one of whom substituted as acting PD&C plant
manager. The emails reflect disputes regarding allocation of resources such as employees and
equipment. They also reflect Complainant’s frustration that his managers blamed him for a
cancelled dispatch and for delays in following-up on routine personnel matters involving those
employees whom Complainant supervised.
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Complainant described these emails as nasty, condescending and extremely stress-inducing. Even
if we were to presume that this behavior towards Complainant had been severe or pervasive such
that a “reasonable person” would have found it hostile, Complainant did not establish how Agency
actions were wrongfully motivated by his protected bases — in this case, disability, age, sex, or
prior EEO engagement. We cannot discern that the alleged conduct was severe or pervasive to
qualify as harassment. See Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice
No. 915.002 (Mar. 3, 1994); Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar.
13, 1997); Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). We have
consistently held assignments, instructions, and admonishments not severe or pervasive to render
a hostile work environment. See Liz M. v. Dep’t of Veterans Affairs, EEOC Appeal No.
0120160016 (Jan. 18, 2018); Complainant v. Dep’t of State, EEOC Appeal No. 0120123299 (Feb.
25, 2015).

We also considered Complainant’s accusations in terms of disparate treatment. To prevail in
alleging disparate treatment discrimination, he had to satisfy the Supreme Court’s three-part
evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
Complainant had to 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). The second burden falls
on the Agency to articulate legitimate and nondiscriminatory reasons for its actions. 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). Third, Complainant had to show, by a
preponderance of the evidence, that the Agency explanations were pretexts for discrimination.
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Here, Complainant stated that management treated him poorly compared to female supervisory
EAS employees who also had attendance problems. Complainant asserted that actions against him
related to ten years earlier, when the Agency denied a request to provide him scooter as a disability
accommodation. He further accused the Acting PD&C manager denying leave and using
discipline in reprisal, because Complainant had twice accused this same individual of
discrimination in 2016. Complainant further suspected that the Acting PD&C manager attempting
to manipulate Complainant into retiring out of resentment and because Complainant was eligible
based on age.

On the other hand, the Agency explained the Letter of Warning was properly issued for
Complainant’s 34 days of unexcused absences in calendar year 2017. The Agency justified denial
of Complainant’s requests under the Family and Medical Leave Act (FMLA) 2017 because it
found that he had exhausted his balance and also failed to timely provide medical documentation
that could have excused further absence. Taken together with the evidence of record, these
opposing parties were at best, in equipoise. Ultimately, Complainant failed to carry the burden of
proving to a preponderance of evidence, that the alleged acts of disparate treatment occurred.
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Complainant v. Dep’t of Health and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24,
2014).

CONCLUSION

Based on a thorough review of this entire record, we AFFIRM the Agency’s final decision finding
no discrimination regarding all the subject claims.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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.
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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

March 13, 2019
Date