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

Equal Employment Opportunity Commission

Jul 2, 2015

01-2012-3093-0500 (E.E.O.C. Jul. 2, 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
(Southwest Area),
Agency.

Appeal No. 0120123093

Hearing No. 490-2011-00018X

Agency No. 4G-720-0011-09

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s June 22, 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. For the following reasons, the
Commission AFFIRMS the final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Customer
Services Supervisor at the Agency’s Post Office in Rogers, Arkansas. On July 17, 2008,
Complainant and the Agency entered into a settlement agreement in which Complainant was
transferred into a Postmaster position at the Beaver Post Office. Complainant claimed that
after the EEO complaint was settled and shortly before he reported to Beaver, he was given
additional duties that should have been assigned to another supervisor. In particular,
Complainant claimed that he was given rural carrier supervisory duties and reported to work as
early as 6:00 a.m., and stayed as late as 7:00 p.m. Complainant believed that due to his
“condition and medical limitations at the time,” his work assignments should not have
changed.1

1 The Commission notes that Complainant does not allege discrimination on the basis of
disability in the instant complaint.
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On July 9, 2008, while still at the Rogers Post Office, Complainant was responsible for
shipping several items from retail stock via reserve stock to the stamp destruction committee.
A significant shortage of $9,850.67 was later discovered. Management officials had numerous
discussions about the shortage, and on October 20, 2008, the Rogers Post Office Postmaster
issued Complainant a Letter of Demand informing him of the Agency’s intent to collect the
amount of the shortage from him. The Senior Manager of Post Office Operations issued the
Postmaster a Notice of Determination of Debt on November 13, 2008, informing her of the
existence of the debt, and on December 31, 2008, the Postmaster in turn issued Complainant a
Notice of Determination of Debt. After further investigation, on January 14, 2009, the
Postmaster informed Complainant that the Notice of Determination of Debt had been
withdrawn, and instead issued a Notice of Determination for the shortage to a Supervisor (S1).

In addition, Complainant claimed that the Postmaster made changes herself or had other
supervisors make changes to his time and attendance records which resulted in him being
charged with annual leave on August 25, 2008, and leave without pay (LWOP) for his absence
of September 8 – 12, 2008. Complainant contended that he worked on August 25, 2008, and
should have been charged with Family Medical Leave Act (FMLA) sick leave for September
8-12, 2008.

On February 5, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against and harassed him in reprisal for prior protected EEO activity when:

1. Since July 2008, his work assignments were changed; he was charged leave
incorrectly; and he was forced to walk excessively regardless of his limitations and
pain;

2. Management improperly discussed his prior EEO with individuals who did not need
to know about it; and

3. On October 21, 2008 and again on December 31, 2008, he was issued two letters
demanding that he repay almost $10,000 representing a net shortage in retail stock.

The Agency initially dismissed the complaint; however, in Complainant v. U.S. Postal Serv.,
EEOC Appeal No. 0120091929 (June 17, 2010), the Commission reversed the dismissal and
remanded the complaint for further processing. At the conclusion of the investigation of the
remanded complaint, the Agency provided Complainant with a copy of the report of
investigation (ROI) 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 May 30 and 31, 2012, and subsequently issued a bench decision on
June 13, 2012.2

2 The Postmaster retired from federal service prior to the hearing and did not testify. The
record does contain, however, an affidavit she submitted to the investigator as part of the
investigation of Complainant's allegations.

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In the decision, the AJ determined that alleged incidents were not sufficiently severe or
pervasive to establish harassment. Further, the AJ concluded that there was no evidence that
the alleged incidents were based on retaliatory animus. As a result, the AJ found that
Complainant had not been subjected to a retaliatory hostile work environment as alleged. The
Agency subsequently issued a final order fully implementing the AJ’s decision. The instant
appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in his decision finding that the demand letters
were not retaliatory. Complainant contends that there was no evidence showing a legitimate
business reason for the second letter. Complainant argues that the AJ’s decision was
oversimplified and lacking in detailed analysis of the issues in the complaint. Accordingly,
Complainant requests that the Commission reverse the final order.

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. Nat’l Labor Relations Bd., 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.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS
Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510U. S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
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stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris

, 510 U.S. at 22 (1993).
Here, Complainant asserted that based on his prior protected activity, management subjected
him to a hostile work environment. Complainant alleged several incidents of what he believed
to be retaliatory harassment. The Commission finds that substantial record evidence supports
the AJ's determination that Complainant has not shown that he was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment.

Additionally, the Commission concurs with the AJ that Complainant failed to show that the
alleged incidents were motivated by his prior protected activity. For example, with respect to
his leave claims, the Postmaster denied any involvement in changing Complainant’s leave or
asking others to make changes. The Postmaster noted that, after Complainant transferred to
Beaver in July 2008, she no longer had any authority over his leave. ROI, at 300. Further,
the Postmaster added that FMLA determinations were made by the Arkansas District FMLA
Office. Id. In addition, the Commission concurs with the AJ’s finding that there is no
evidence that Agency officials improperly discussed Complainant’s prior EEO activity.
Further, as to his work assignments being changed, the Postmaster stated that Complainant was
assigned to be the Rural Supervisor after S1 was appointed to a vacant supervisory position.
Id. at 298. S1 had been a rural carrier at the Rogers Post Office while Complainant had been a
rural carrier elsewhere; therefore, S1 believed it would be in the best interests of both to assign
Complainant as Rural Supervisor. Id

. Finally, as to being forced to excessively walk,
testimony revealed that Complainant’s office was a distance from the front desk and that he
was needed to provide service to Spanish-speaking customers at times. Hr’g Tr., Vol. 1, at
158-59, 200.
Finally, regarding the Letters of Demand, management officials believed that Complainant, as
custodian of stamp stock, was responsible for a shortage at the Rogers Post Office. Hr’g Tr.,
Vol. 2, at 355-60. As a result, the Postmaster issued the October 2008 Letter of Demand.
That letter was procedurally deficient; therefore, the Postmaster issued the December 2008
Letter to correct it and notify Complainant of his proper appeal rights. Id. at 360-61. After
further investigation and discussions, management subsequently withdrew the Letter of
Demand and issued S1 a Notice of Determination of Debt to collect the shortage. Id

. at 413-
14; ROI, at Ex. 16.
Furthermore, to the extent that Complainant is alleging disparate treatment with respect to his
claims, the Commission finds that substantial record evidence supports the AJ's determination
that he has not shown that the Agency's reasons for its actions were a pretext for reprisal. As
a result, the Commission finds that Complainant has not established that he was subjected to
reprisal or a hostile work environment as alleged. Substantial evidence supports the AJ's
findings of fact, and the Commission discerns no basis to disturb his conclusions of law.

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CONCLUSION
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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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
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.
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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
Office of Federal Operations

Date
July 2, 2015