Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 13, 2013

0120114171 (E.E.O.C. Feb. 13, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120114171

Hearing No. 471-2010-00021X

Agency No. 1J-483-0022-09

DECISION

On September 2, 2011, Complainant filed an appeal from the Agency’s August 4, 2011 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processor at
the Agency’s George W. Young facility in Detroit, Michigan. On July 10, 2009, Complainant
filed an EEO complaint alleging that the Agency harassed him on the bases of sex (male) and
disability when:

1. On February 11,2009, he was singled out and accused of being on an
unauthorized break;
2. On February 13, 2009, he was forced to sign 3971s marked AWOL;
3. On March 5, 2009, he was issued a Letter of Warning;
4. On April 9, 2009, he was issued a 7-Day Suspension; and
5. On May 27, 2009, the Complainant was ordered to leave the facility
because of possible exposure to "Swine Flu" (or H1 N1 flu).

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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, and the AJ held a hearing
on May 17, 2011, and issued a decision on July 26, 2011.

In her decision, the AJ concluded that there was no unlawful harassment because Complainant
failed to prove that any of the Agency’s actions were taken because of his sex or disability.1

The AJ found that management credibly testified that the individual who singled Complainant
out and accused him of being on an unauthorized break was a Senior Plant Manager (SPS) who
was new to the facility and was unfamiliar with the break times. The SPS had been
challenging the breaks of all employees he saw who were not working, and this was causing
several complaints. The AJ found that SPS was unaware of Complainant’s disability, and there
was no evidence to suggest he was treating female employees more favorably than male
employees.
The AJ further found that management credibly testified that Complainant was not forced to
sign the 3971 forms. He was asked to do it because he had been absent for a period of time
without calling in so his leave had not been properly documented. She also found no evidence
that Complainant was prevented from filing a grievance regarding being charged AWOL.

With regard to the Letter of Warning and the 7-Day Suspension, the AJ again found that
management credibly testified that Complainant was disciplined for being on a break while
there was still mail to be run, for refusing to work in the 481/482 area and for repeatedly
refusing to pick up the loose mail from around the bottom of his machine, a task all Mail
Processors were expected to perform.

Finally, the AJ found that Complainant and two female employees were sent home when
management learned they had been exposed to the Swine Flu. The AJ noted that Complainant
did not challenge being sent home but rather having to take his own leave while awaiting
medical clearance to return. Management credibly testified that none of the employees were
granted administrative leave for their absence, contrary to Complainant’s assertion that the
females were given administrative leave while he was not.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant
failed to prove that the Agency harassed him as alleged. This appeal followed. On appeal,
Complainant expressed frustration with the hearing procedures and not having an attorney to
represent him. He also reiterated his belief that SPS was deliberately harassing him.

1 The AJ assumed Complainant was an individual with a disability within the meaning of the
Rehabilitation Act but she noted that he had never requested reasonable accommodation and
that there was no such claim before her.

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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, sex or disability. Only if
Complainant establishes both of those elements, does the question of vicarious liability for
supervisory harassment present itself.

Upon review of the record, we discern no basis to disturb the AJ’s decision. Simply put, the
AJ found management’s testimony as to what occurred and why it occurred to be more credible
than Complainant’s version of events. We accept these credibility determinations because
there is no persuasive testimony to contradict them and because substantial evidence supports
the AJ’s findings of fact. With regard to almost all of the incidents, we note that Complainant
admitted he did not believe his sex was a factor in the alleged action. While we are
sympathetic to Complainant’s belief that SPS was out to get him and may have been using his
authority to ensure Complainant was disciplined, no reasonable fact finder could conclude from
this record that it was because of Complainant’s sex or disability. For these reasons, the AJ
correctly concluded that Complainant failed to prove an essential element of his harassment
claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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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
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.

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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

February 13, 2013
Date