Agustin L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Aug 29, 2016

0120142686 (E.E.O.C. Aug. 29, 2016)

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

Agustin L.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120142686

Agency No. 1G-772-0033-13

DECISION

Complainant filed an appeal from the Agency’s July 15, 2014, final decision 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. The Commission deems the appeal timely and accepts it for
de novo review. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

Complainant worked as a Mail Handler at the North Houston Processing and Distribution in
Houston, Texas. On December 31, 2013, he filed an EEO complaint in which he raised a
number of claims:

1. Since August 7, 2013, Complainant’s immediate supervisor, a Distribution Operations
Supervisor (S1) failed to provide him with a reasonable accommodation for his
disability (diabetes and related complications, including neuropathy of the feet).

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. Since August 7, 2013, S1 harassed Complainant because of his disability (diabetes,
neuropathy of the feet) by following him around, questioning him regarding his need
for breaks, and tracking his whereabouts.

3. In September of 2013, S1 discriminated against Complainant on the bases of race
(Asian), national origin (Japanese), skin color (beige), sex (male), age (44), reprisal
(current EEO activity), and disability (diabetes, neuropathy of the feet) by denying his
request for power industrial truck (PIT) training.

4. Complainant subsequently amended his complaint to include an allegation that on
February 20, 2014, S1 discriminated against him on the bases of race (Asian), national
origin (Japanese), skin color (beige), religion (Buddhist), sex (male), age (44), and
reprisal (current EEO activity) by issuing him a letter of warning.

At the conclusion of the ensuing initial and supplemental investigations, the Agency provided
Complainant with a copy of the investigative report and notice of his right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ). 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). In
that decision, the Agency concluded that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

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 first address Complainant’s reasonable accommodation claim. An Agency is required to
reasonably accommodate the known limitations of a qualified individual with a
disability, unless it can show that doing so would cause an undue hardship to its
operations. See 29 C.F.R. §§ 1630.2 (o) and (p). A qualified individual with a disability is an
“individual with a disability who satisfies the requisite skill, experience, education, and other
job-related requirements of the employment position such individual holds or desires, and who,
with or without reasonable accommodation, can perform the essential functions of such
position. 29 C.F.R. § 1630.2(m). For purposes of analysis, we will assume that Complainant
is a qualified individual with a disability.
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Complainant averred that because of his diabetes, he needed to check his blood sugar several
times during the course of a workday in order to ensure that his blood sugar levels did not drop
to dangerous levels. IR 95. As an accommodation, he requested that he be allowed to do so
approximately 30 minutes prior to taking lunch, as well as taking his morning and afternoon
breaks. He averred that he had brought a note from his doctor attesting to his need for the
requested accommodation. IR 93. He also averred that S1 refused to accept his medical
documentation and was arguing with him as to why he needed to have to check is blood sugar
in the first place. IR 93. Complainant stated that S1’s alleged denial of his need for an
accommodation dated back to 2009, when S1 earned a rebuke from a District Operations
Manager for purportedly refusing to train him as a supervisor. IR 94.

S1 denied that he refused to accommodate Complainant. He acknowledged that Complainant
had a permanent medical condition that he accommodated by allowing Complainant to check
his blood sugar levels prior to going on break or taking lunch. IR 145. S1 averred, however,
that he never received a doctor’s note from Complainant documenting the need to check his
blood sugar a full thirty minutes before taking lunch or breaks. IR 144. S1 further averred
that Complainant was out of his position on the automated package processing system (APPS)
for thirty minutes three times per day during his tour, and that this adversely affected
productivity. IR 145-46. In a supplemental affidavit, S1 averred that he and Complainant had
reached an agreement during a mediation on a prior EEO complaint under which Complainant
would be allowed to check his blood sugar 15 minutes before going to lunch or on break, and
that he was merely attempting to hold Complainant to the terms of the mediation agreement,
IR 164-65. Complainant has not presented any sworn statements from other witnesses or
documents contradicting S1’s assertion that he did not make any attempt to deny Complainant
his accommodation. We therefore find, as did the Agency, that Complainant failed to sustain
his burden of proof that S1 denied his request for a reasonable accommodation or otherwise
obstructed or attempted to obstruct the implementation of Complainant’s accommodation.

Next, we consider Complainant’s claim of discriminatory harassment. Harassment of
employees that would not occur but for Complainant’s protected status is unlawful if
sufficiently severe or pervasive. Wibstad v. U.S. Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998). To prevail on a claim of discriminatory harassment, Complainant must
prove, by a preponderance of the evidence, that because of his disability or his membership in
other protected groups, he was subjected to conduct so severe or pervasive that a reasonable
person in their position would have considered it hostile or abusive. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 22 (1993) That conduct should be evaluated from the objective
viewpoint of a reasonable person in the victims’ circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Only if
Complainant satisfies his burden of proof with respect to both of these elements, motive and
hostility, will the question of Agency liability for harassment present itself. Complainant v.
Dep’t of Veterans Affairs, EEOC Appeal No. 0120132783 (Sept. 11, 2015).

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In support of his harassment claim, Complainant averred that on five occasions during the
latter part of September 2013, S1 had followed him to the room that he used for checking his
blood sugar, waited outside the room for Complainant to finish, and then demanded to know
why Complainant had taken so long. He averred that on one of these occasions, another
supervisor had tapped on the window and beckoned him to come out. IR 97-99. He also
presented a self-prepared note documenting a conversation between himself and S1 that took
place on August 1, 2013, in which S1 allegedly told him that “he needed to control his diabetes
better.” IR 190. S1 responded that he was merely expressing his concerns about
Complainant’s loss of productivity and reiterated that he was merely trying to ensure that
Complainant abided by the terms of the mediation and limit the time he took to check his blood
sugar to fifteen minutes per session. IR 146-47, 164-65. The other supervisor denied that she
tapped on the window of the room that Complainant was using to check his blood sugar or
otherwise attempted to monitor his breaks. IR 175-76. She also averred that Complainant had
accused her of harassment when, on one occasion, she requested his assistance in prepping
mail. IR 179.

When asked by the investigator why he believed that he was being harassed because of his
membership in multiple protected groups, he responded that four black female employees were
allowed to leave the workroom floor due to medical disabilities while he was not, that S1 had
expressed his disdain for the EEO process, and that S1 had accused him of faking his
condition. IR 101-03. Apart from these unsupported assertions, however, Complainant has
not presented any evidence that undercuts S1’s explanation for expressing his concerns over
what he saw as Complainant’s inordinate time spent attending to his medical needs, or the
other supervisor’s denial of the window-tapping incident. And again, we find that
Complainant failed to meet his burden of proof on the issue of discriminatory intent.
Moreover, the incidents involving S1 and the other supervisor which Complainant
characterizes as harassment are nothing more than routine work assignments, instructions, and
admonishments which, by definition, are neither severe nor pervasive enough to rise to the
level of a hostile work environment. Complainant v. Dept. of State, EEOC Appeal No.
0120123299 (February 25, 2015).

Finally, we consider Complainant’s claim of disparate treatment regarding the alleged denial of
PIT training and the letter of warning. The Commission cannot second-guess an Agency’s
decisions involving personnel unless there is evidence of a discriminatory motivation on the
part of the officials responsible for making those decisions. See Texas Department of
Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on
his disparate treatment claim, Complainant would have to prove, by a preponderance of the
evidence, that S1 was motivated by unlawful considerations of his religion, sex, disability,
national origin, age, skin color, race, or EEO activity in connection with the two incidents in
question. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).
Complainant may do so by showing that the reasons articulated by S1 were pretext, i.e., not
the real reasons but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks, 509
U.S. 502, 515 (1993).

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As to the denial of PIT training, Complainant averred that S1 came to him on September 6,
2013, and said, “with a smirk on his face that, ‘there will be no PIT training for you,’” and
also that S1 denied requests for PIT training that he had made on August 19 and again on
September 2nd and 9th. IR 104-05. When asked by the investigator why he believed that it was
an act of discrimination, Complainant responded that, “two females were allowed to take PIT
training because they were females,” that S1 told him that, “he did not care about EEO,” and
that the other supervisor had told him that he was already allowed too much time away from
the workroom floor because of his diabetes and that being certified as a PIT driver would only
increase his absences. IR 107-08. S1 admitted that he denied Complainant’s request for PIT
training, but stated that it was not necessary for Complainant to perform his job. IR 150. The
other supervisor denied that she had ever discussed PIT training with Complainant. IR 178.
As with the other incidents, Complainant has not presented any sworn statements or documents
beyond his own bald assertions or otherwise point to any contradictions in the evidentiary
record that would tend to cast doubt upon the explanation offered by S1 for not granting his
request for PIT training or upon the other’s supervisors denial that they had a conversation on
the subject. Consequently, we agree with the Agency that Complainant failed to sustain his
burden of proof regarding S1’s motivation for denying Complainant’s request for PIT training.

Concerning the letter of warning, Complainant averred that S1 gave no reason for issuing the
letter, characterizing it as “pure retaliation.” IR 115. When asked by the investigator why he
believed that his race, color, religion, sex, and age factored into S1’s decision to issue him the
warning, Complainant responded, “I believe it’s because I’m Japanese, Beige (in color),
Buddhist, male, and over forty, and because S1 doesn’t like me or care for me. IR 116-18.
He also averred that he had been disciplined four times since he filed his initial EEO
complaint. IR 119. S1 averred that he issued the letter of warning to Complainant on
February 11, 2014, and emphasized that a reason was given, namely unsatisfactory work
performance. According to the letter and the pre-disciplinary interview report Complainant
failed to properly cull mail and load it into the APPS, resulting in the Center’s failure to meet
its productivity goals. IR 162, 167-70. As with the other incidents comprising the instant
complaint, the preponderant evidence supports S1’s version of events. And again,
Complainant has not presented sufficient evidence to sustain his burden of proof in connection
with S1’s motivation for issuing Complainant a letter of warning in February of 2014.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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.

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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

August 29, 2016
Date