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

Equal Employment Opportunity Commission

Mar 25, 2015

0120130112 (E.E.O.C. Mar. 25, 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
(Western Area),
Agency.

Appeal No. 0120130112

Hearing No. 560-2011-00184X

Agency No. 1E-642-0016-09

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
August 24, 2012 final Agency decision (FAD) 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s Processing and Distribution Center in Kansas City, Missouri. Complainant
alleges that in May 2009, his supervisor (S1) began taking “harassing verbal attacks” at him
and making rude comments. For example, Complainant claims that S1 said things such as
“Lookie here, don't you ever walk off while I'm giving assignments!” “You heard what I
said!” “You need to go scan!” “I’m not putting you on nothing! What you need to do is get
to work!” In addition, Complainant claims that S1 interrupted him and separated him from
female co-workers on several occasions. Complainant believed that these incidents were based
on his rejection of S1’s “aggressive sexual advances” in the past.

On May 10, 2008, Complainant claims that S1 was argumentative with him, critical of his
work performance, and subjected him to close and unwarranted scrutiny. S1 directed
Complainant to scan, but Complainant believed that there was no need for him to scan, and he
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did not have a scanner. S1 instructed Complainant to use another employee’s scanner, but
Complainant replied that he could not because he believed that using another employee’s
scanner was not allowed. S1 then instructed Complainant to clock out because he had failed to
follow her direct order.

On September 6, 2009, Complainant was working overtime on the High Speed Universal
Sorter (HSUS) and all employees had been given specific instructions to keep the Sorter’s legs
clean so that the mail could continue to be processed. In addition, Complainant had been
asked to make sure at the end of the tour that the legs were clean before leaving the unit.
However, Complainant made several excuses during the shift to S1 about why he could not
keep the legs clean. When Complainant left at the end of his shift, the leg where he was
working was full. As a result, on September 25, 2009, S1 issued Complainant a Letter of
Warning for Failure to Follow Instructions.

In addition, on September 6, 2009, Complainant claims that S1 told a co-worker (CW1) that
Complainant had complained to her about CW1 not performing his share of the workload.
Complainant told CW1 that this was a lie. Complainant later saw S1 talking to CW1 and
another employee about how Complainant was lying.

Complainant claims that S1 would often skip him and give assignments to employees junior to
him before giving him an assignment. Complainant stated that on one occasion in August
2010, S1 waited 15 minutes to address him and then only told him that he was late for the
distribution of assignments. In addition, Complainant alleges that S1 refused to assign him to
higher-level assignments.

On December 22, 2009 (and later amended), Complainant filed an EEO complaint alleging that
the Agency discriminated against him and subjected him to a hostile work environment on the
bases of sex (male), age (48), and in reprisal for prior protected EEO activity as evidenced by
multiple incidents, inter alia, since May 9, 2008, he was subjected to harassing verbal attacks
by his supervisor (S1); removed from the dock; issued a Letter of Warning; and S1 spread
rumors about him, failed to assign him duties or assigned duties to junior employees.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge. Complainant timely requested a hearing, but subsequently withdrew his
request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that management articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, with respect to the May 10, 2008 incident, S1 stated that

1 The Agency initially dismissed the complaint as untimely; however, on appeal, the
Commission reversed the dismissal and remanded the complaint for further processing. See
Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120101404 (July 21, 2010).
Complainant later amended the complaint.
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she removed Complainant from the clock because he refused her instruction to scan mail, using
the excuse that he had over 20 years of scanning so she had to find a junior person to scan
because he did not work that hard any more. S1 instructed him several times to scan, and he
refused each time so she clocked him out. Regarding the Letter of Warning, S1 affirmed that
Complainant failed to follow instructions while working overtime on the HSUS.

Regarding Complainant’s claim that S1 made rude comments and spread rumors about him, S1
denied making rude comments about Complainant. S1 stated, however, that on September 5,
2010, Complainant asked her why she did not assign CW1 to help him since he was not doing
anything. S1 asserted that she then conveyed to CW1 what Complainant had said and asked
CW1 to help Complainant. Thus, S1 denied that she spread rumors about Complainant, but
rather only repeated what Complainant said.

With respect to the assignment of duties, the Agency noted that Complainant acknowledged
that S1 assigned him duties; however, it was not in the order of seniority that he felt was
appropriate. The record indicated that S1 refused to assign Complainant higher-level
assignments by seniority and initially explained to Complainant that he was a “push-up” Level
4 and not a true Level 4. S1 later learned that she was distributing assignments incorrectly and
that she should assign duties by straight seniority. Additionally, S1 indicated that she only
skipped Complainant when he was not present when assignments were being made, and he
showed up 20 minutes late.

Finally, as to Complainant’s claim that S1 was motivated to discipline him because he rejected
her sexual advances, S1 denied making any sexual advances at Complainant. Even so, the
Distribution Operations Manager (M1) stated that once he was informed of Complainant’s
accusations, he instructed a supervisor (S2) to investigate the matter. Based on the
investigation, M1 determined that Complainant’s allegations were groundless and that he
believed that Complainant claimed harassment because S1 had to continuously page him back
to his work assignment.

The Agency concluded that the alleged incidents were not sufficiently severe or pervasive to
establish a hostile work environment. Further, the Agency found that Complainant failed to
show that the alleged conduct was based on discriminatory or retaliatory animus. As a result,
the Agency found that Complainant had not been subjected to discrimination, reprisal, or a
hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that S1 used rude tones and mannerisms towards him and
became very aggressive and very rude to him. In addition, Complainant alleges that S1’s
reasons for issuing the Letter of Warning are false. Further, Complainant argues that S1
harassed him and incorrectly issued assignments by seniority. Accordingly, Complainant
requests that the Commission reverse the FAD.

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ANALYSIS AND FINDINGS
Hostile Work Environment Harassment

To establish a claim of harassment, Complainant must show that: (1) he is a member of a
statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based
on his 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. Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16. 1998); 29 C.F.R. § 1604.11. 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, 510 U.S. at 21. 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 (Mar. 8, 1994) (Enforcement Guidance on Harris

).
As Complainant withdrew his hearing request, the Commission does not have the benefit of an
Administrative Judge's credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. Here, Complainant
asserted that based on his protected classes, management continuously subjected him to a
hostile work environment. Complainant has cited numerous incidents where Agency officials
took actions that seemed adverse or disruptive to him. The Commission concludes that the
alleged incidents at issue in their totality are insufficiently severe or pervasive to establish a
hostile work environment. The record reflects that the alleged incidents were more likely the
result of routine supervision, personality conflicts, and general workplace disputes and
tribulations that do not rise to the level of severe or pervasive conduct.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or
retaliatory animus played a role in any of the Agency's actions. Further, to the extent that
Complainant is alleging disparate treatment with respect to his claims, the Commission finds
that he has not shown that the Agency's reasons for its actions were a pretext for unlawful
discrimination or reprisal.

Finally, as to Complainant’s claim that S1 subjected him to sexual advances and treated him
more harshly after he rejected her advances, the Commission finds that Complainant has not
established, by a preponderance of the evidence, that he was subjected to sexual harassment.
S1 denied that she ever made any advances or comments to Complainant, and there is no
corroboration that S1 actually made sexual advances. While the Commission recognizes that
sexual harassment often occurs without corroborating witnesses, there is no evidence that
Complainant contemporaneously told anyone (friends, family, co-workers or management
officials) about the alleged harassment until he challenged the Letter of Warning from S1.
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ROI, at 389. After learning of Complainant’s allegations, M1 ordered an investigation. At the
conclusion of the investigation, M1 concluded that Complainant’s allegations were
unsubstantiated, and he believed that Complainant was trying to intimidate S1 because she did
not tolerate his failure to perform his duties. Id. at 391. Moreover, Complainant conceded
that no further harassment occurred. Id

. at 291. As a result, the Commission finds that
Complainant has not established that he was subjected to discrimination, reprisal, or a hostile
work environment as alleged.

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 Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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).
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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
March 25, 2015