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

Equal Employment Opportunity Commission

Feb 12, 2015

0120132728 (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. 0120132728

Hearing No. 443-2011-00174X

Agency No. 4E-500-0014-11

DECISION
On July 11, 2013, Complainant filed an appeal from the Agency’s June 13, 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 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.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electronics
Technician at the Agency’s Processing & Distribution Center in Waterloo, Iowa. Complainant
was the only Hispanic employee in his Department. All of the other employees were White.
The Department had problems with attendance issues. The Acting Manager of Maintenance
was Complainant’s first line supervisor (S1), and one of his goals was to get the attendance
problems resolved as his predecessor had allegedly been disciplined for failing to get a handle
on them. Complainant had the worst attendance record of those supervised by S1.

On April 8, 2011, Complainant filed an EEO complaint alleging that the Agency harassed him
on the basis of national origin (Hispanic)1

1 Complainant claimed race discrimination rather than national origin. However, the
Commission recognizes the basis of Hispanic as one of national origin, not race.
when:

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1. On November 5, 2010, Complainant received a Letter of Warning for
Unsatisfactory Attendance;
2. On December 29, 2010, S1 told Complainant he would have him removed, no
matter what;
3. On January 13, 2011, Complainant received a 7-Day Suspension for being Absent
Without Leave (AWOL);
4. On unspecified dates, S1 interrogated Complainant excessively about his work;
5. On unspecified dates, S1 stared and watched Complainant excessively on the
workroom floor;
6. On unspecified dates, S1 established rules with Complainant that were not
consistent with federal laws or USPS regulations;
7. On unspecified dates, S1 violated Complainant's contractual rights;
8. On unspecified dates, S1 exercised malice toward Complainant on discipline issues
and arbitrarily issued him discipline;
9. Since May 2010, when Complainant filed a harassment complaint against S1, S1
has created a hostile work environment for the Complainant;
10. On unspecified dates, S1 denied Complainant FMLA leave several times for his
wife's health care needs;
11. On unspecified dates, S1 denied Complainant annual leave or steward's time for no
apparent reason; and
12. On an unspecified date, the union informed upper management of the above issues
and nothing was resolved.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on June 7, 2012, and issued a decision on May 24, 2013.

In his decision, the AJ found that Complainant had been subjected to unwelcome conduct in the
form of discipline, denial of annual leave and being required to submit documentation to
support his requests for FMLA leave.2

The AJ concluded that Complainant had not proven, by
a preponderance of the evidence, that any of this conduct was motivated by Complainant’s
national origin. The AJ found that:
The overwhelming weight of the record suggests that the issues in this matter
were a result of Complainant's attendance record and the mutually antagonistic
behavior S1 and Complainant displayed towards one another.

2 With regard to the other alleged incidents, the AJ found that Complainant failed to prove they
even occurred.

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AJ Decision at 19. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

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. National Labor Relations Board, 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

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS
To prove his harassment claim, Complainant must establish that he was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of a protected basis, i.e.

, in this case, his national origin. Only if
Complainant establishes both of those elements, does the question of Agency liability present
itself.
Upon review of the record, we discern no basis to disturb the AJ’s decision. The AJ credited
S1’s explanations for his actions and did not find any evidence to support Complainant’s claim
that he was singled out and treated both disparately and in a hostile manner because of his
national origin. The AJ noted that there was not a comment or any other form of
communication from S1 regarding Complainant’s national origin. The AJ was also persuaded
by the testimony of Complainant’s second line supervisor, the Manager-Mail Processing (S2)
and the Acting Plant Manager who testified that Complainant and S1 do not like each other.
S2 testified that they were very aggressive with each other and had been counseled about acting
more professionally in the workplace. We find no reason to set these credibility
determinations aside.

The AJ also found that Complainant’s attendance issues were the reasons he was disciplined
and also likely further strained the relationship with S1 who was trying to resolve the
Department’s abysmal attendance record, a goal which was drawing the ire of many
employees, not just Complainant. The lack of congeniality between Complainant and S1
clearly led to misunderstandings, especially with regard to Complainant’s efforts to assist his
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wife with her medical appointments, but substantial evidence supports the AJ’s conclusion that
their problems and the attendant consequences were not because of Complainant’s national
origin.

For these reasons, we AFFIRM the Agency’s final order.

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.
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
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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
February 12, 2015