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

Equal Employment Opportunity Commission

Feb 12, 2015

0120133002 (E.E.O.C. Feb. 12, 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. 0120133002

Hearing No. 540-2012-00078X

Agency No. 4E-800-0255-10

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s July 25, 2013 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. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Hoffman Heights Station in Aurora, Colorado. On or around September 15, 2010,
Complainant claims that his supervisor (S1) received a statement from another supervisor (S2)
about a conversation S2 overheard earlier in the day between Complainant and another carrier.
In that statement, S2 claimed that he overheard Complainant tell the carrier that he
intentionally did not follow S1’s instructions to call in to report that he would not be able to
return to the office by 6:00 p.m. S2 admitted that he could not hear well, that the quotes were
not exact, and that his statement could not be used as evidence. S1 showed the statement to the
carrier, and she told S1 what she and Complainant actually said. S1 then threw S2’s statement
away and took no further action.

On September 16, 2010, S1 observed Complainant while he was out on his route. While
observing Complainant, S1 gave him several instructions, including, to cut across the lawn or a
residence and to “pike” his mail as he was crossing the street. Complainant challenged S1’s
instructions because he believed they were unsafe. S1 contacted the Postmaster, and the
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Postmaster asked a manager (M1) to join S1. When M1 arrived, S1 instructed Complainant to
finish his route. Complainant told her that he needed to go to lunch first, and S1 instructed
him not to take lunch at that time. Complainant took his lunch anyway, and then went to a
mail room on his route to work on route mail and “mark up” mail. S1 was still observing
Complainant and informed him that was supposed to do this at the office and instructed
Complainant to return to the station. M1 agreed with S1. Complainant argued that S1 had
previously given him different instructions. Complainant had earlier requested overtime for
box maintenance; however, S1 denied his request. Further, Complainant was expected to have
taken his lunch within the first six hours of his shift, but did not do so. Thus, S1 decided that
Complainant should not work his mark-up mail because he was working overtime at the time.

Later that day, the Customer Services Manager (M2) observed Complainant parked in a fire
lane/no-parking zone. M2 questioned Complainant about it, and Complainant told him that
other carriers had parked there in the past when there was nowhere else to park. On
September 17, 2010, the Postmaster saw Complainant parked in the same fire lane again and
told Complainant that M2 saw him parked there the day before. Complainant admitted that he
had done so. The Postmaster instructed Complainant to follow all city, state, and government
rules. Complainant again said that carriers have parked there in the past and that police
officers had never ticketed him. On September 30, 2010, S1 conducted an investigative
interview with Complainant regarding issues that occurred on September 16 and 17, 2010. On
October 26, 2010, S1 issued Complainant a Letter of Warning for failing to follow instructions
for parking in the fire lane/no parking zone. The Letter of Warning was subsequently
removed from Complainant’s personnel file.

On November 4, 2010, S1 walked down the aisle near the carriers’ cases. A carrier told S1
that he did not want overtime on one of his routes and asked for overtime on another route. S1
responded that Complainant had overtime on that route and that if the carrier wanted it, “why
don’t you two fight it out?” Complainant accused S1 of pitting the two carriers against each
other. S1 then told the carriers that neither would carry overtime on their own assigned
routes.

On December 1, 2010, Complainant realized that he had forgotten his scanner and returned to
the station to retrieve it. Complainant discovered that the scanner was not on its cradle and
asked S1 and another supervisor if they had seen it. They indicated that they had seen it
earlier in the morning. Complainant took another employee’s scanner and returned to his
route. When Complainant returned that evening, the scanner had been returned. Another
employee had mistakenly taken Complainant’s scanner and placed it the wrong cradle, and
another carrier gave it to the supervisors.

On September 2, 2011, Complainant argued with S1 regarding an overtime issue and became
involved in a physical altercation with another employee (CW2), who was waiting to talk to
S1. During the altercation, Complainant pushed CW2, and CW2 punched Complainant in the
back. S1 and another supervisor broke up the altercation, and S1 instructed Complainant to go
deliver his mail. Both Complainant and CW2 called the police. CW2 claimed that he was
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injured and went to the manager’s office. Police interviewed Complainant, CW2, S1, and
other witnesses. S1 assigned other carriers to deliver CW2’s mail and allowed CW2 to go
home.

Complainant did not return to work after the incident and called in sick for his absences. On
September 6, 2011, the Customer Service Support Supervisor (S3) sent Complainant a letter
instructing him to provide medical documentation demonstrating his incapacity to work. The
letter noted that Complainant may be eligible for Family Medical Leave Act (FMLA) leave,
and that his absences would be changed to Absent without Leave (AWOL) if he did not submit
the requested documentation. Complainant submitted an FMLA leave request. The request
included documentation from his doctor stating that he would not be incapacitated for a single
continuous period due to his unspecified medical condition and that the frequency of the flare-
ups of the medical condition would be once a week for eight hours.

On September 16, 2011, the Customer Service Manager (M3) instructed Complainant to attend
an investigative interview regarding the altercation with CW2. Complainant refused to attend
the interview. On September 22, 2011, M3 again instructed Complainant to appear for an
investigative interview. On September 27, 2011, Complainant sent M3 a letter claiming that
he was on FMLA leave, and that he would only cooperate with management when his concerns
were addressed. Complainant did not attend the second scheduled interview. On September
29, 2011, management sent Complainant a letter stating that the Medical Unit had deemed his
submitted medical documentation as inadequate and, as a result, his absences had been changed
to AWOL. The letter provided Complainant 72 hours to provide adequate medical
documentation. Complainant failed to submit the requested documentation in the time
provided.

On October 21, 2011, management issued Complainant a Notice of Removal based on the
altercation with CW2, his ongoing unexcused absences, and his failure to attend the
investigative interviews. Complainant subsequently submitted adequate medical documentation
and was retroactively granted FMLA leave from September 9, 2011 through March 9, 2012.

On January 7, 2011 (and amended numerous times), Complainant filed an EEO complaint
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of race (African-American) and in reprisal for prior protected EEO
activity as evidenced by multiple incidents, including, inter alia, a supervisor was solicited to
make a false statement against him that he was attempting to convince another carrier not to
make the 6:00 p.m. window to return to the office; he was given improper and conflicting
instructions; he was improperly observed on his route; he was issued a Letter of Warning;
another carrier was told to fight with him for overtime on another route; his scanner was
missing and he was threatened with having to pay for a replacement; he was involved in an
altercation which resulted in him being barred from returning to the building; management
attempted to force him to attend an investigative interview, placed him in an Absent Without
Leave (AWOL) status, and denied him Family Medical Leave Act (FMLA) leave; and he was
issued a Notice of Removal.
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The Agency initially dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. Complainant appealed and, in Complainant v. U.S. Postal Serv.

,
EEOC Appeal No. 0120112087 (July 26, 2011), the Commission reversed the Agency’s
dismissal and remanded the matter for further processing. Complainant subsequently amended
his complaint to include additional claims. At the conclusion of the investigation of the
remanded and amended claims, 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 (AJ). Complainant timely requested a hearing, but the AJ assigned to the case granted
summary judgment in favor of the Agency and issued a decision on July 12, 2013.
In her decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ noted that the record indicated that in early-2010, S1 made a
comment during a stand-up meeting that she did not believe the federal government should
have a holiday honoring Dr. Martin Luther King, Jr. “because he was a rabble-rouser and all
his marches did was invite violence.” The AJ found that while this statement may have been
offensive, Complainant offered no evidence linking the comment and the incidents alleged.
Further, the AJ added that the statement was not directed at Complainant. The AJ determined
that Complainant failed to show that any of the alleged incidents were based on his protected
classes. As a result, the AJ found that Complainant had not been subjected to discrimination,
reprisal, or a 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 contends that the AJ erred in granting the Agency’s motion for
summary judgment as material facts remain in dispute. Complainant argues that the Agency
discriminated against him based on his race, retaliated against him because he opposed
unlawful employment practices, and unlawfully permitted the existence of a hostile work
environment. Complainant states that the record shows that he was subjected to discriminatory
and retaliatory discipline. Complainant argues that the litany of discriminatory and retaliatory
actions by Agency management demonstrates the existence of ongoing antagonism towards
him. Accordingly, Complainant requests that the Commission reverse the final order.

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.
(citing
, EEOC Appeal No. 01972699 (Aug. 14,
1998) 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,
0120133002

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and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc. ; Enforcement Guidance at 6. The Supreme Court has
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.”
, 510 U.S. 17, 21 (1993)
Harris . , 510 U.S. at 22 (1993)

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on his protected classes,
he was subjected to a hostile work environment as evidenced by multiple incidents. Construing
the evidence in the light most favorable to Complainant, the Commission agrees with the AJ
that Complainant has not shown he was subjected to a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. For example, S1 denied soliciting S2 to make a false
statement against Complainant. ROI, at 758. Even so, the record indicates that S1 threw the
statement away and took no action. Id. at 1067. With regard to conflicting/improper
instructions and improper observations, S1 stated that she was observing Complainant on
September 16, 2010, based on M2’s instructions to review Complainant’s delivery
performance. Id. at 763. S1 maintained that the instructions she gave Complainant that day
were not improper, and no unsafe conditions existed. Id. at 761. S1 added that her
instructions were based on operational decisions related to customer service and delivery times.
Id

. at 764.
As to the Letter of Warning, management issued it to Complainant for failure to follow
instructions when he parked in the fire lane/no parking zone in violation of Agency rules and
state laws even after M2 spoke to him about it the previous day. ROI, at 183. Complainant
failed to give an acceptable explanation for his actions during the investigative interview. Id.
The Letter of Warning was subsequently removed as part of a grievance settlement. Id. at
326-29. Regarding S1’s comment to another carrier to “fight” with Complainant for overtime,
S1 explained that she was simply telling Complainant and another carrier to discuss swapping
overtime hours if they wanted. Id. at 769. With respect to the missing scanner issue, S1
denied threatening Complainant with having to pay to replace it and confirmed that another
carrier had mistakenly taken it. Id

. at 772.
Regarding the altercation with CW2, S1 asserted that Complainant was arguing with her over
overtime, and he and CW2 got into a physical altercation. ROI, at 775. S1 and another
supervisor broke up the incident, and Complainant left for his route. Id. at 776. CW2 claimed
that he was injured and went to the manager’s office. Id. Both provided statements to the
police. Complainant did not report back to work after the day of the incident. Id

. at 774.
As to the October 2011 AWOL charge/FMLA leave denial, S3 affirmed that the Medical Unit
reviewed Complainant’s submitted medical documentation and determined that it was
inadequate to support his absence. ROI, at 1032. S3 stated that Complainant’s doctor did not
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indicate that Complainant’s absence was continuous; therefore, his FMLA documentation was
unacceptable. Id. Complainant was sent a duty status letter on September 29, 2011, giving
him specific instructions to follow regarding his absences. Id. 1033. Complainant failed to
submit the requested medical documentation at the time, and his leave was changed to AWOL.
Id. at 1034. Complainant subsequently submitted sufficient documentation, and his FMLA
leave request was retroactively granted. Id

. at 1125.
With respect to the requests for investigative interviews, M3 instructed Complainant to attend
an investigative interview to discuss the altercation Complainant had with CW2. ROI, at 1041.
M3 noted that Agency policy requires a full investigation when there is an incident of
workplace violence. Id. at 1042. M3 interviewed several witnesses and CW2; however,
Complainant refused to report for an interview despite two direct requests. Id

. Finally, as to
the Notice of Proposed Removal, management issued it based on Complainant’s unacceptable
conduct for his involvement in the altercation with CW2, his refusal to report for an
investigative interview, and his unexcused absences. ROI, at 1126-30.
The Commission concurs with the AJ's determination that, even when viewing all of the
alleged incidents and evidence in the light most favorable to Complainant, the record does not
show that the Agency subjected Complainant to a discriminatory or retaliatory hostile work
environment. The AJ found that Complainant failed to present any evidence that
discriminatory or retaliatory animus motivated the incidents at issue. Finally, 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. Accordingly, the Commission finds no basis to disturb the AJ's
summary judgment decision finding that Complainant was not 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 order, because the Administrative Judge’s issuance of summary judgment
without a hearing was appropriate and a preponderance of the record evidence 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:

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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.
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
0120133002

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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
February 12, 2015