0120170339
08-02-2018
Bryce A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bryce A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120170339
Hearing No. 560-2014-00346X
Agency No. 4E-640-0031-13
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 12, 2016, 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., and 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 (FAD), which found that Complainant did not demonstrate that he was subjected to discriminatory harassment as he alleged.
ISSUE PRESENTED
The issue presented in this case is whether the Agency erred by finding that Complainant did not demonstrate that he was subjected to discrimination and harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time City Carrier at the Agency's Hodge Park Carrier Annex in Kansas City, Missouri. On May 16, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to harassment and discriminated against him on the bases of race (African-American), sex (male), disability (degenerative back condition, degenerative knee condition, high blood pressure/stress), and reprisal when:
1. He was charged Leave Without Pay (LWOP) instead of paid Sick Leave (SL) for
time period of January 14 - 21, 2013. (Race, sex, and retaliation).
2. He did not receive payment for January 14 - 21, 2013, in his next payment as promised. (Race, sex, and retaliation).
3. He was charged Absent Without Leave (AWOL) for the time period of January
28 - February 2, 2013; subsequently, on February 23, 2013, he received a 7-Day
Suspension based on the AWOL charge. (Race, sex, and retaliation).
4. On June 15, 2013, his request for a special route inspection was denied. (Race, disability, and retaliation).
5. On June 15, 2013, after returning from delivering his route, he was yelled at by his Supervisor (S1) stating the following: "You were only on your route today and you should have been finished," and he continued to yell at him stating the following: "To remove postal cartoons from your case." (Race, disability, and retaliation).
6. On October 10, 2013, he was issued a 7-Day Suspension for Failure to Follow Instructions. (Race and retaliation).
7. On December 18, 2013, he was given a Pre-Disciplinary Investigation (PDI) for
Failure to Follow Instructions. (Race and retaliation).
8. On December 28, 2013, he was issued a Notice of 7-Day suspension for Failure
to Follow Instructions. (Race and retaliation).
9. On January 21, 2014, he was issued a Notice of 14-Day Suspension dated January 17, 2014. (Race and retaliation).
Following an investigation of this matter, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant however, withdrew his request and a final decision was issued by the Agency.
The FAD found that assuming, arguendo, Complainant established a prima facie case of discrimination as to all of his bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the FAD found that claims 1, 2, 3, 4, 6, 8, and 9, independently stated a claim and would be analyzed within the context of disparate treatment. The FAD noted that other than this complaint, Complainant had no other EEO activity and management was not aware of any disability. Regarding claim no. 1, Complainant was charged LWOP because he did not submit proper medical documentation. The only documentation that was acceptable was documentation which stated that an employee was incapacitated and unable to perform his/her duties. Management maintained that all workers were held to this standard and if they did not provide said documentation with that exact language they would be charged LWOP.
With respect to claim no. 2, Complainant's LWOP was thereafter changed to Sick Leave and an adjustment was made that was due on his next paycheck. He did not receive the payment in his next paycheck, because the paperwork was not completed in time. Complainant was informed however, when to expect it. Further, with respect to claim no. 3, Complainant was charged AWOL for the time period of January 28 - February 2, 2013, and subsequently, on February 23, 2013, he received a 7-day suspension based on the AWOL charge. Management explained that Complainant agreed to cover for a coworker. He reported to work but then left. Complainant admitted that he saw his supervisor looking smug at him and because he had not submitted official documentation with management, he just decided to do his regular hours and left. As such, Complainant received a 7-day suspension based on the AWOL charge.
Regarding claim no. 4, Complainant alleged that his request for a Special Route Inspection was denied, however, management indicated that the route was walked with Complainant for approximately a week in June to address his request. With respect to claim no. 5, S1 acknowledged raising his voice at Complainant but indicated that he wanted to know why he had not finished the route. Regarding claim no. 6, Complainant was issued a 7-day suspension for failure to follow instructions; however, after an investigation was conducted, S1 explained that no disciplinary action was issued.
With respect to claim no. 7, Complainant was given the Pre-Disciplinary Investigation as a result of his work performance, however, no discipline was issued. Regarding claim no. 8, on December 28, 2013, he was issued a Notice of 7-day suspension for failure to follow instructions, management explained that Complainant was given help with his route and still he was late with his deliveries and he failed to call in. Management indicated that Complainant was aware that he was supposed to call in if he was going to be late.
Finally, with regard to claim no. 9, where Petitioner was issued a Notice of 14-day Suspension dated January 17, 2014, management indicated that Complainant was issued the discipline because he was discovered to be at his personal residence while on overtime in a company vehicle. Management indicated that Complainant was well aware that he was not supposed to take a postal vehicle to his residence unless he is delivering mail at the address or he had prior authorization.
The FAD found that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination, as his claims were based on factors other than his protected bases. Specifically, most of the incidents were the result of Complainant's repeated tardiness in delivering his route, his opposition to management, and his work with the union.
With regard to Complainant's harassment claims, i.e., 5 and 7, Complainant claimed that he was yelled at when he returned to the office late and when he was told to remove the cartoons from his case; and when, on December 18, 2013, he was given a Pre-Disciplinary Investigation for Failure to Follow Instructions. Complainant's supervisor admitted that he had a conversation with Complainant regarding his doing union activities and working only on his route. With regard to removing the cartoons on his case, management explained that the cartoon depicted management as a mouse which was very derogatory and in bad taste.
Regarding, claim 7, the Pre-Disciplinary Investigation, management indicated that Complainant was given a pre-disciplinary investigation regarding an issue with the delivery or his time. Management maintained however that no discipline resulted. Complainant also alleged that his wife heard people talking about him. The Agency indicated that even when reviewing all of his claims in totality, the claims involved work-related matters that were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal Complainant, contends among other things, that his complaint arises out of having an overburdened route from January 2011 to June 2015, when he finally bid off the route. Complainant contends that he requested a special route adjustment from ten separate management teams in that time frame and was refused. Complainant maintains that he believes that managements actions against him are because he participates in the union and points out wrong-doing on the job.
In response, the Agency, contends among other things, that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not demonstrate that the Agency's reasons were pretext for discrimination. The Agency also maintains that the incidents complained of by Complainant were not severe or pervasive enough to establish a hostile work environment.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's FAD. We find that even if we assume, arguendo, that Complainant established a prima facie case of discrimination as to all bases, we find, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was listed above. To show pretext, Complainant argued, that his case stemmed from the fact that his route was not properly classified, the denial of his request for a Special Route Inspection, and his union activities. Complainant indicated that his unwillingness to back down when he saw management doing something wrong was one of the reasons that he was a target. We find that Complainant's arguments are not related to EEO discrimination; therefore, Complainant has not shown that the Agency's reasons for its actions were pretext for discrimination or that discriminatory animus based on his protected bases was a factor.
With respect to Complainant's claim of a hostile work environment, we find that the claims, even if accurately described by Complainant, were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Moreover, we find that the interactions between Complainant and his supervisors were for the most part work-related interactions and we find no evidence that they were based on his protected bases. While Complainant and his supervisor had different ideas about time, assignments, leave, and other topics, we find that Complainant did not demonstrate that discriminatory animus was involved. Therefore, we find the preponderance of the evidence of record does not establish that discriminatory harassment occurred.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination and/or harassment.
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. 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
_8/2/18_________________
Date
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170339
6
0120170339