Allen M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

May 24, 2019

0120180087 (E.E.O.C. May. 24, 2019)

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

Allen M.,1
Complainant,

v.

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

Appeal No. 0120180087

Agency No. 4E980003717

DECISION

On September 26, 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
August 24, 2017, 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. 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 Part-Time Regular
Carrier Technician at the Agency’s Riverton Heights Station facility in Seattle, Washington. On
March 22, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American) and color (black) when:

1. On October 11, 2013, Complainant had a confrontation with two coworkers and
a Supervisor;
2. On December 21, 2016 and December 29, 2016, management provoked
Complainant and tried to get him to lose his temper; and

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. On January 31, 2017, two Acting Supervisors confronted him, got into his
personal space, and physically contacted him.

On April 25, 2017, the Agency dismissed Claims 1 and 2 and accepted Claim 3. The Agency
dismissed Claim 1 for stating the same claim as raised in a previous complaint. The Agency found
that Complainant had filed EEO complaint 1E-981-0002-14 on October 13, 2013, in which he
alleged that on October 11, 2013, he was verbally harassed by a supervisor, a driver, and a mail
handler and accused of speeding in the parking lot which is the same claim as Claim 1. The Agency
dismissed Claim 2 for failure to state a claim. The Agency found that beyond offering the two
dates, Complainant was vague and failed to provide the necessary specificity regarding what
happened on those occasions that Complainant felt to be harassment.

After the investigation of Claim 3, 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). 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). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. Specifically, the Agency found that Complainant failed
to establish a prima facie case of race or color discrimination because the persons he identified as
comparators had not engaged in similar conduct.

The Agency considered that Complainant stated that, on January 31, 2017, two Customer Service
Supervisors (S1 and S2) confronted him, got into his personal space, and physically contacted him.
The Agency noted that both S1 and S2 were new to the facility, and S2 stated that at the time he
had not received training on how to deal with difficult situations or employees. The Agency also
considered the statements of the supervisors. S1 explained that being new to the facility, he
attempted to become familiar with all the Carriers while gathering "intel" on the Forms 4584
(Observation of Driving Practices) that were mandated on a weekly basis. He averred that when
Complainant walked passed him as he was sitting at the desk, he asked for Complainant's name
and after he walked about 10 feet away, Complainant yelled out “Eastland." S1 said he kept
working at his desk and when Complainant walked passed him again he politely asked for his full
name and title. S1 said that Complainant yelled back: "speak to me when I’m on the clock” and
"you don't speak to me unless I’m on the clock." S1 confirmed that he stood up and asked
Complainant if he would feel better if he S1 clocked off and they spoke outside in private, to which
he said Complainant responded by calling him a "coward" and other vulgar names multiple times.
S1 said that Complainant also yelled out "supervisors and management ain't shit" and “don't tell
me what to do." S1 stated that, at that point, S2 intervened and grabbed Complainant's badge to
obtain Complainant’s name to which Complainant yelled out "don't touch me." S1 further claimed
that Complainant had to be forcefully pushed into the break room by his union steward to calm
him down while Complainant continued to call them "cowards" and yelled out "supervisors don't
tell me shit."

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S2 confirmed that after he had asked Complainant’s name and Complainant ignored him, he took
hold of Complainant’s badge but let go of it and attempted to talk to Complainant by name. S2
stated that he thought he had done the right thing by attempting to separate S1 and Complainant
during the confrontation, calm the parties down, and get Complainant to leave the building since
he continued to provoke S1. The Agency noted that Complainant stated that he reported the
incident to the Customer Service Manager (CSM) who stated that he conducted a preliminary
investigation and reported the incident to the Threat Assessment Team. According to CSM, the
Postal Inspection Service reviewed the report and deemed that there was no assault of Complainant
by S2.

In attempting to establish disparate treatment, Complainant identified three employees who he
believed received favorable treatment. However, nothing in the record supported his contention
since CSM stated that management was not aware of any incidents by these persons to support
Complainant's allegations and S2 averred that it was the first and only time he has had an employee
refuse to show him identification or attempt to cause an altercation with another employee. The
Agency therefore found that none of the persons were similarly situated to Complainant.

Additionally, the Agency found that management had articulated legitimate, nondiscriminatory
reasons for its actions that Complainant failed to establish were pretextual. The record disclosed
that Article 3 of the National Agreement Between the United States Postal Service and the National
Association of Letter Carriers (National Agreement) gave management the right to direct
employees in the performance of their official duties and that subsections of the Employee and
Labor Relations Manual indicated that employees are expected to discharge their assigned duties
and obey the instructions of their supervisors. According to management, Complainant had been
asked his name and title in accordance with their official duties as supervisors and he reacted
uncooperatively and unprofessionally. The Agency also considered that an investigation had been
conducted regarding Complainant’s harassment complaint against the supervisors and that the
investigative team concluded that Complainant had acted unprofessionally when he was
approached by his supervisors. Lastly, the Agency found that, in addition to the supervisors’ denial
of discriminatory treatment, Complainant failed to produce any evidence establishing that his race
or color played a role in the incident. Accordingly, the Agency found no discrimination. This
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”).

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On appeal, Complainant has not filed a brief or statement identifying any legal or factual errors in
the Agency’s analysis of Claim 3; nor has he challenged the procedural dismissals of Claims 1 and
2. Based on a thorough review of the record, we find no error in the dismissal of claims 1 and 2
pursuant to 29 C.F.R. § 1614.107(a)(1). Also, we agree with the disposition of Claim 3 because
the Agency’s management team acted in the furtherance of their official duties when they
requested Complainant’s name, checked his badge, and requested that he leave the building to
defuse the possibility of further confrontation. Even if Complainant is correct that they could have
handled the matter more professionally, he has not presented any evidence indicating that the
supervisors’ actions were motivated by his race and color.

CONCLUSION

The Agency’s decision is AFFIRMED.

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

May 24, 2019
Date