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

Equal Employment Opportunity Commission

Jul 22, 2015

01-2015-1079-0500 (E.E.O.C. Jul. 22, 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. 0120151079

Hearing No. 551-2011-00126X

Agency No. 1E-971-1013-11

DECISION
On January 20, 2015, Complainant filed an appeal from the Agency’s December 8, 2014, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 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 finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s Springfield Processing and Distribution facility in Eugene, Oregon. On March
28, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against
him on the bases of disability (epilepsy) and in reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when: (1) Complainant was subjected to a hostile
work environment from April 2008 through November 2010; and (2) on November 10, 2010,
he was issued a Notice of Removal.

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
and the AJ held a hearing on November 4, 2014. On December 5, 2014, the AJ issued a
decision finding no discrimination. The Agency subsequently issued a final order adopting the
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AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination
as alleged. On appeal, Complainant reiterates his contention that he was subjected to unlawful
harassment and discrimination.

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
With respect to claim (1), harassment of an employee that would not occur but for the
employee’s race, color, sex, national origin, age, disability, or religion is unlawful. See
McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group
of isolated incidents will not be regarded as discriminatory harassment unless the conduct is
severe. See Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII [or the Rehabilitation Act]
must be determined by looking at all the circumstances, including the frequency of the
discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a
mere offensive utterance, and whether it unreasonably interferes with an employee’s work
performance. See Harris v. Forklift Systems

, 510 U.S. 17 (1993).
Here, we concur with the AJ’s finding that Complainant failed to show that he was subjected to
a hostile work environment. The AJ found that with respect to a number of conflicts
Complainant alleged were harassing, the Agency’s explanations for the workplace conflicts
were much more credible than Complainant’s explanations. In so finding, the AJ noted that
Complainant routinely blamed others for his issues in the workplace, and that these conflicts
were often the result of his poor demeanor towards others rather than unprovoked animus from
his coworkers. Accordingly, we concur with the AJ’s finding that Complainant failed to show
that any of the incidents alleged were motivated by discriminatory or retaliatory animus.
Furthermore, we find that Complainant has not alleged incidents that rise to the level of a
hostile work environment.

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With respect to claim (2), 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). Complainant must initially establish a prima
facie case by demonstrating that he or she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination. See Furnco Constr.
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on
the facts of the particular case. See McDonnell Douglas, 411 U.S. at 804 n. 14. The burden
then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions.
See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is
pretextual. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
Here, we concur with the AJ’s determination that assuming, arguendo, Complainant
established a prima facie case of disability and reprisal discrimination, the Agency nonetheless
articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record shows
that Complainant was issued a Notice of Removal (NOR) on November 10, 2010, for his
failure to perform his duties in a safe manner. In issuing the NOR, management cited
numerous instances where Complainant engaged in unsafe practices such as failing to restrain
an over-the-road container, thereby causing the four-hundred pound machine to fall off the
dock, as well as repeated instances of Complainant ignoring or misstating his medical
restrictions. The AJ determined that the Agency’s cited safety concerns constituted a
legitimate, nondiscriminatory reason for the actions against Complainant, and the Commission
agrees with this determination. We further concur with the AJ’s finding that Complainant
failed to demonstrate that these reasons were mere pretext for discriminatory animus.

CONCLUSION
We AFFIRM the Agency’s final order 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.
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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
July 22, 2015