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

Equal Employment Opportunity Commission

Jul 24, 2015

01-2013-3240-0500 (E.E.O.C. Jul. 24, 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. 0120133240

Hearing No. 520-2012-00195X

Agency No. 4C-080-0109-11

DECISION
On August 28, 2013, Complainant filed an appeal from the Agency’s July 26, 2013 final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of 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 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 City Carrier at the
Agency’s Matawan Post Office in Matawan, New Jersey. On October 20, 2011, Complainant
filed an EEO complaint alleging that the Agency discriminated against him on the bases of
disability, age (55), and in reprisal for prior protected EEO activity when he was subjected to
harassment during a series of incidents occurring between July 2011 and November 2011:

1. On July 2, 2011, he was issued a 14-Day No-Time-Off Suspension for “Failure
to Follow Instructions/Failure to Properly Perform Your Duties in a Safe
Manner.”

2. On or about July 7, 2011, he was sent home and denied reasonable
accommodation through September 7, 2011.

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3. On July 8, 2011 he received a letter telling him to use sick leave (instead of a
CA-17) when he did not request it.

4. On September 9, 2011 he was given a thirty-minute pivot from another route.

5. On September 20, 2011 he was denied fifteen minutes overtime.

6. On October 13, 2011 he was asked about being sixteen units over in work
hours.

7. On October 18, 2011 a supervisor changed all scans and locations on the route
without telling him.

8. On November 3, 2011 he was issued a 7-Day No-Time-Off Suspension for
“Failure to Perform Your Duties in a Safe Manner.”

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on March 19, 2013, and issued a decision on July 12, 2013. 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.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS
It is well-settled that harassment based on an individual's age, disability or prior protected
activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986), see also
Olson v. Housing and Urban Development, EEOC Request No. 05930413 (June 16, 1994)
(finding that acts of harassment directed at an employee because of a physical or mental
disability, if sufficiently severe or pervasive, violate the Rehabilitation Act). In order to
establish a claim of harassment under those bases, Complainant must show that: (1) he belongs
to the statutorily protected classes and engaged in prior EEO activity; (2) he was subjected to
unwelcome conduct related to his membership in those classes and his prior EEO activity; (3)
the harassment complained of was based on age, disability and/or prior protected activity; (4)
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the harassment had the purpose or effect of unreasonably interfering with his work
performance and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee

, 682 F.2d
897 (11th Cir. 1982).
Here, there is no evidence that any of the claimed harassing actions undertaken by Agency
management or by Complainant’s co-workers were motivated by animus toward him because
of age, disability or his protected activity. There is no evidence, such as an age-based remark
or disability-based ridicule, that would support an inference of discriminatory animus.

Indeed, the AJ concluded as a factual matter, with respect to each of the listed incidents, that
the Agency took the actions in question for legitimate reasons, pursuant to its normal operating
procedures. AJ Decision at 7. For example, hearing testimony showed that Complainant was
properly subject to discipline, as described in item #1, for failing to carry mail he was
delivering in a satchel, as Agency regulations require. Hearing Transcript (Tr.) at 75-76. The
evidence also showed that Complainant had been properly disciplined for failure to perform his
duties in a safe manner, as described in item #8 above, because he had been observed driving
his delivery vehicle with the door open. Tr. at 155. These factual conclusions, which are
based on substantial evidence, negate any inference that the Agency’s actions were motivated
by discriminatory animus.1

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

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:

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

1 With respect to the alleged denial of reasonable accommodation, as set forth in Item #2, this
claim was withdrawn, by stipulation of the parties, at the hearing. Tr. at 12.
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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
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 Date
July 24, 2015
Office of Federal Operations