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

Equal Employment Opportunity Commission

Jul 2, 2015

01-2012-3236-0500 (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. 0120123236

Agency No. 4G-752-0010-12

DECISION
Complainant filed an appeal from the Agency’s July 6, 2012 Final Decision 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. For the following reasons, the Commission AFFIRMS the Agency’s
Final Decision, finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter
Carrier at the Agency’s Main Post Office facility in Grand Prairie, Texas. On November 16,
2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him
on the bases of disability (nerve damage) and in reprisal for prior protected EEO activity under
Section 501 of the Rehabilitation Act of 1973 when he was subjected to harassment that
included the following incidents:

1. Since October 14, 2011, Complainant was denied a reasonable accommodation.

2. The Postmaster has not taken any actions to stop or prevent the ongoing
harassment.

3. On December 23, 2011, the Station Manager made a threatening statement to
Complainant.

4. On January 7, 2012, the Station Manager called Complainant into the office and
harassed him, causing Complainant to pass out and be taken to the hospital.
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5. Complainant was not given forms regarding the injury he sustained on January
7, 2012, and management reported him to the Office of Inspector General.

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). 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).

In its Decision the Agency found that with respect to reprisal, that Complainant established that
the Agency was aware of his prior EEO activity and that he had voiced opposition to Agency
actions he believed were discriminatory. Specifically, the Postmaster and Station Manager (P1
and M1, respectively) were aware of Complainant’s prior EEO complaints and S1,
Complainant’s immediate “204B” supervisor, was aware that Complainant had complained
about being harassed because of his disability and in reprisal for his prior EEO activity. The
Agency further found that Complainant alleged he was subjected to adverse action including a
denial of his request for a reasonable accommodation, and that he had been called into M1’s
office for harassment. The Agency further found that Complainant’s prior EEO activity
occurred in close proximity to the time of the incidents described in Complainant’s complaint.
The Agency therefore found that Complainant established a prima facie case of reprisal
discrimination. The Agency found, however, that management articulated legitimate,
nondiscriminatory reasons for its actions and that Complainant did not show that the Agency’s
reasons were a pretext to mask discrimination.

With respect to disability discrimination, the Agency found that in a prior EEO complaint,1

an
EEOC Administrative Judge found that Complainant was a qualified individual with a
disability. The Agency acknowledged that Complainant is restricted to working an 8-hour day
and that Complainant cannot work overtime. The Agency found that Complainant’s time and
attendance records show that Complainant has worked only 8 hours or less each day from
October 14, 2011 through December 2011, and that Complainant received sick leave for
October 15, 2011. Accordingly, the Agency concluded that Complainant did not prove that he
has not been accommodated for his disability since October 14, 2011.
Regarding Complainant’s overall harassment claim, the Agency considered Complainant’s
claim that M1 had stated to Complainant that M1 was “tired of [Complainant and
Complainant’s co-worker, E1] bringing back mail” and that “it’s going to stop.” M1 stated
that he would “take care of [both Complainant and E1] next week.” Complainant asked M1 if
M1 intended that statement to be a threat to which M1 replied that Complainant could take it
anyway Complainant chose. The Agency also considered E1’s statement that E1 had to step
between Complainant and M1 during this encounter and that E1 believed Complainant had

1 Administrative Judge’s Decision (May 24, 2011) EEOC Hearing Case No. 450-2010-
00183X, Agency No. 4G-752-0248-09.
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good reason to fear for his safety. The Agency found that M1 denied that he threatened
Complainant but only stated that he would be addressing the mail delivery issues with
Complainant the following week because M1 was off the next day and the following Monday
was a holiday.

The Agency also considered that on January 7, 2012, S1 attempted to address performance
issues with Complainant on the workroom floor. The Agency found that when Complainant
became loud, S1 called Complainant into the office. The Agency considered that while in the
office, Complainant became stressed and asked for a glass of water, which he was given.
Complainant started to breathe hard and lay down on the floor, at which time paramedics were
called and Complainant was transported to the hospital. The Agency found that S1 explained
that his actions were to address performance issues with Complainant and that Complainant
would not respond to S1’s questions. S1 denied that he harassed Complainant.

The Agency noted that after the incident on January 7, 2012, Complainant asked M1 for a
form (CA-1) to file a claim for a traumatic on-the-job injury. M1 informed Complainant that
he believed the CA-1 form was not the right form to submit for stress and M1 gave
Complainant a CA-2. The Agency noted that Complainant ultimately requested and received a
CA-1 form from P1, and that he ultimately submitted both forms, which led the Agency’s
Office of the Inspector General (OIG) to investigate whether Complainant had filed a
fraudulent claim. The Agency found that M1 stated he gave Complainant the right form, the
CA-2, but that when Complainant learned he would not receive continuation of pay (COP)
immediately, Complainant wanted to file his claim using the CA-1 form for traumatic injury so
that he would receive COP right away as Complainant had exhausted his leave. The Agency
found that Agency management articulated legitimate, nondiscriminatory reasons for its actions
that Complainant did not show were a pretext to mask discrimination.

The Agency concluded that Complainant’s allegations were not supported by the evidence and
that Complainant had not shown that the Agency’s actions were motivated by his medical
condition or his prior protected activity. The Agency found that none of the incidents
described by Complainant in his complaint included personal slurs or other denigrating
comments directed at Complainant based on his disability or protected activity. Rather, the
Agency found that management’s actions were the result of Complainant’s supervisors being
engaged in the management and supervision of Complainant’s conduct and performance and
consisted of efforts to manage Complainant’s performance in the delivery of the mail. The
Agency found that Complainant did not show that the reasons cited by management for its
actions were a pretext and that Complainant had not shown that he was subjected to
harassment. The Final Decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

On appeal, Complainant states that in his prior EEO cases, M1 was found to be less than
credible when he testified before an EEOC Administrative Judge and that despite a finding of
discrimination, the Agency left the officials who violated antidiscrimination laws in place in
Complainant’s chain of command, free to continue their harassment of Complainant.
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Complainant states that despite his 8-hour work limitation, of which M1 and S1 were well
aware, Complainant was assigned to routes with more than 8 hours of work, thus knowingly
putting Complainant in the position where he would either violate his medical restrictions or
would incur harassment from M1 and others by asking for auxiliary help or bringing back mail
undelivered.

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. (November 9, 1999) (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”).
To establish a claim of harassment a complainant must show that: (1) they belong to a
statutorily protected class; (2) they were subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment 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). Further, the incidents must have been "sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.

, EEOC
Notice No. 915.002 at 6 (Mar. 8, 1994).
With respect to element (5), an employer is subject to vicarious liability for harassment when it
is created by a supervisor with immediate (or successively higher) authority over the employee.
See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However,
where the harassment does not result in a tangible employment action the agency can raise an
affirmative defense, which is subject to proof by a preponderance of the evidence, by
demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any
harassing behavior; and (2) that complainant unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See
Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This
defense is not available when the harassment results in a tangible employment action (e.g., a
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discharge, demotion, or undesirable reassignment) being taken against the employee. In the
case of co-worker harassment, an agency is responsible for acts of harassment in the workplace
where the agency (or its agents) knew or should have known of the conduct, unless it can show
that it took immediate and appropriate corrective action.

Id.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find the evidence supports the Agency’s Final Decision. We note, as
does the Agency, that Complainant did not work more than 8 hours per day between October
2011 and January 2012, and accordingly, his medical restrictions were not violated. We
consider the statement of the Postmaster who stated that all carriers can request auxiliary
assistance when they will not be able to finish delivering the mail on their assigned route in 8
hours.

We further consider the language of M1 and the actions of S1, described in Complainant’s
complaint, to address what management describes as performance issues. We do not find that
M1 or S1’s statements to Complainant and E1 were harassment, but that both supervisors have
as part of their supervisory duties, the duty to supervise and manage Complainant, including
the duty to address performance issues. We do not find that the comments that M1 would
“take care of Complainant” (and E1) to be a threat of violence or harassment based upon
Complainant’s disability or motivated by Complainant’s prior protected activity. We do not
find in the language used by M1 that his promise to address Complainant’s perceived
performance issues at a later date rose to the level of discriminatory harassment.

We further find the evidence does not show that management harassed Complainant by
requesting that the discussion regarding Complainant’s performance be continued in an office
after the discussion became disruptive on the workroom floor. We find no dispute that the
confrontation between Complainant and management became stressful for Complainant and
that ultimately Complainant required treatment. We note the medical records indicate, as the
Agency found, that Complainant experienced a recurrence of the conditions (migraine
headache) from which he suffered for many years, and not, as Complainant believed, a panic
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attack. We find that the Agency’s actions were not harassment, but another example of
Complainant’s supervisors attempting to supervise and manage a subordinate employee. We
find that Complainant received no discipline or other adverse consequence as a result of the
incident on January 7, 2012, and accordingly, we find that Complainant was not harassed as
alleged.

With respect to Complainant’s request for claim forms from M1, we find that M1 adequately
explained that he provided form CA-2 to Complainant and denied Complainant’s request for a
CA-1 form for legitimate, nondiscriminatory reasons. Specifically, M1 believed that the
incident of January 7, 2012, had been caused by stress that Complainant experienced and that
M1 believed such a claim for compensation was properly filed on a CA-2 form. Complainant,
we note, disagreed with M1, and believed that he had suffered from a panic attack brought on
by management’s harassment and accordingly, desired to file a claim for benefits based upon a
traumatic injury that occurred on-the-job, which claim Complainant asserts is properly filed on
a CA-1 form. We find the evidence supports the Agency’s finding that M1 denied
Complainant’s request for legitimate reasons and that when Complainant ultimately filed two
different forms for the same incident, that the Agency’s OIG had legitimate reasons to question
Complainant’s claims. Again, we find no evidence that Complainant received any discipline or
suffered any adverse actions as a result of the Agency’s inquiry and that Complainant did not
show that his disability or prior EEO activity motivated the Agency’s actions.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision, finding
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:

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
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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
Office of Federal Operations

Date
July 2, 2015