Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 19, 2015

0120130577 (E.E.O.C. Mar. 19, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120130577

Hearing No. 532-2012-00043X

Agency No. 4C-450-0056-11

DECISION
On December 3, 2012, Complainant filed an appeal from the Agency’s October 29, 2012 final
order 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the
Agency’s Post Office in Mount Vernon, Ohio. On September 13, 2011, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the bases of religion
(Jewish) and in reprisal for prior protected EEO activity when: (1) on April 19 and 22, 2011,
the Postmaster (PO) made disparaging remarks about his religion; (2) on May 31, 2011, his
request for Leave Without Pay (LWOP) to observe a religious holiday was denied; (3) on May
10, 2011, he was issued a Letter of Warning (LOW) for poor performance/Improper Conduct;
and (4) on June 21, 2011, he was given a Pre-Disciplinary Interview (PDI) and threatened with
termination.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s April 26, 2012 motion for
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summary judgment and issued a decision on September 26, 2012. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

FACTUAL BACKGROUND
As of April 2011, Complainant had been involved in mail distribution for a period of two
years. Despite two years experience and adequate training and retraining, on various dates,
Complainant mishandled parcels. Complainant was advised that redistributing “misthrown”
mail might help improve his scheme knowledge. On April 15, 2011, Complainant was
instructed to redistribute “misthrown” parcels. Complainant, who had been advised that
redistributing the parcels would improve his scheme knowledge, became defensive.
Complainant believed that he was falsely accused of being the individual who mishandled the
mail. Complainant became increasingly argumentative, stating that it was not his responsibility
to redistribute the mail. During that conversation and the PDI, Complainant admitted that he
had been trained and that his scheme knowledge was not good.

Complainant was represented by counsel in a prior EEO complaint. Complainant's counsel
scheduled depositions in that matter for April 26, 2011. On April 15, 2011, Complainant
requested eight hours of leave without pay for April 26, 2011. Complainant did not indicate
the reason for the request. The request was denied on April 15, 2011, for scheduling
purposes. On April 19, 2011, Complainant advised PO that April 26, 2011, was a holiday and
that he requested leave for that purpose. At the same time, however, Complainant informed
PO of his wish to waive the religious holiday so that he could both work and attend the
deposition his attorney scheduled on the religious holiday. He told PO that he would be
willing to waive being off work for religious observance and work that day if she in turn would
allow him to attend the depositions that day.

Complainant asserts that when he indicated during the meeting that he would waive being off
for religious observance on April 26, 2011, PO commented sneeringly “it must not be very
important to you." Complainant believes "it" referred to his Passover. PO also allegedly
stated that she would not guarantee that she would allow him to attend the depositions, even if
he reported to work. In addition, Complainant alleged that PO stated that "it is not even on the
calendar” which he assumed meant that Passover was not on the calendar. Complainant also
asserts that PO told him two or three times that he would have to establish Passover as a
religious holiday in order for her to allow him to take off April 26th. Complainant also asserts
that PO accused him of using his religion to harm the Agency by taking off April 25 and 26,
2011. Complainant states that he was subsequently granted LWOP for April 25 and 26, 2011.
PO denies making any of the comments alleged.

On May 10, 2011, Complainant was issued a LOW for poor performance and improper
conduct as the result of performance issues and his behavior on April 15, 2011. Complainant's
union filed a grievance regarding the LOW. On July 7, 2011, the Agency settled the grievance
by agreeing to expunge the LOW.
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The documentary evidence establishes that on June 1, 2011, Complainant submitted Form
3971, Request or Notification of Absence, to request eight hours of leave without pay on June
9, 2011. Complainant did not specify any reason for the request. The request was denied.
Complainant submitted a second Request or Notification of Absence on June 1, 2011, to
request eight hours leave without pay on June 9, 2011. On the second form, Complainant
specified that the request was for a religious observance. The request was approved. The
documentary evidence in the record shows that Complainant was given eight hours of LWOP
on June 9, 2011. Complainant worked 40 hours that week exclusive of June 9, 2011.1

Complainant states that on May 21, 2011, he requested LWOP for religious observance on
June 9, 2011. PO allegedly called him to the office and asked for what holiday the request
was. According to Complainant, he replied "Shavuos." PO allegedly pointed out that Shavuos
is a two-day holiday. Complainant allegedly responded by saying he was only asking for one
day off. According to Complainant, PO advised him that the first day of the holiday was more
important than the second day and asked him several times why he only wanted the second day
off. PO denies making any of the alleged statements.

On June 21, 2011, Complainant was given a PDI for poor performance after mishandling a
passport application, mishandling of the dispatch log and arguing with his supervisor (S1). PO
conducted the PDI. Complainant alleges that during the PDI, he was threatened with removal.
However, PO denies threatening Complainant with termination during the PDI. PO further
explains that during the PDI, she read Complainant a boilerplate statement from the PDI
worksheet which was as follows: "I am considering requesting discipline up to and including
your removal from the postal service. At this time, I have not made a decision on the type of
discipline to issue. This is a pre-disciplinary interview. This is your ‘day in court,’ your
opportunity to tell your side of the story." The undisputed record indicates that this statement
has been read at all PDIs since Cincinnati took over the Columbus District.

Evidence of record shows that Complainant filed three prior EEO claims (in September, 2010,
February, 2011 and May, 2011) in which she identified PO and S1 as the alleged responsible
management officials. However, Complainant asserts that the alleged retaliation began in
February 2008 after he wrote a letter to the area vice president alleging misconduct by PO in
relation to the handling of a passport application. The record is devoid of evidence or an
assertion that the 2008 complaint raised an EEO matter.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the

1 The record shows that LWOP is only considered if paid leave is not available or if the
employee's schedule will put them over forty hours, pursuant to the Agency policy.
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non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp.

, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case.
With respect to Complainant harassment claim, he asserts that PO made several comments
during meetings in April of 2011, which allegedly indicated a religious bias. However, a
review of the evidence of record does not support Complainant's assertions because the record
is devoid of evidence to support that such statements were made. Moreover, both PO and S1
were present during the alleged remarks and deny that such remarks were made. However,
even assuming that such remarks were made, we find that they were not sufficiently severe or
pervasive to create a hostile work environment. We also find insufficient evidence that any
management official held unlawful religious or retaliatory animus toward Complainant. In
sum, considering the totality of the circumstances, we agree with the AJ that Complainant
failed to show that the actions complained of to be sufficiently severe or pervasive such as to
create a hostile and abusive working environment or were otherwise motivated by his religion
or prior EEO activity.

As to Claim 2, the undisputed record shows that Complainant was granted leave without pay
for a holiday that fell on June 9, 2011, once Complainant requested a religious
accommodation. The LOW that served as the basis for Claim 3 was expunged pursuant to a
union grievance settlement. Moreover, the Agency presented a legitimate, non-discriminatory
rationale for issuing the LOW, which the Complainant has failed to refute. Claim 4 alleged
only a PDI, a preliminary step in the disciplinary process, a claim which was properly
dismissed by the AJ in accordance with 29 C.F.R. § 1614.109(b). Further, the record shows
that Complainant was not threatened with termination during the PDI at issue. Rather, the
undisputed record shows that PO read an Agency prepared statement to him regarding the
purpose of a PDI and the potential for disciplinary action.

CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency final action which adopts the AJ’s finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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:

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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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 19, 2015