Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (New York Metro Area), Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120114312 (E.E.O.C. Mar. 20, 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
(New York Metro Area),
Agency.

Appeal No. 0120114312

Hearing No. 520-2011-00358X

Agency No. 1B-113-0037-10

DECISION

On September 15, 2011, Complainant filed an appeal from the Agency’s August 19, 2011 final
decision 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 for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s Processing & Distribution Center in Brooklyn, New York. He was a long
tenured employee of the Agency. Complainant's job mainly consisted of two types of duties:
(1) unloading trucks manually; and (2) using a High/Low machine to move pallets from one
operation to another. On December 31, 2010, Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the bases of national origin (American), color
(Black), and in reprisal for prior protected EEO activity when:

1. From December 14, 2009, through October 14, 2010, he was harassed by his
Manager regarding work performance and work assignments; treated with
disrespect; not called by name; and threatened regarding his career;
2. On August 19, 2010, his Manager replaced him on the “High/Low” with a junior
employee and then ordered him out of the building, resulting in his being charged
24 hours of Leave without Pay (LWOP);
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3. On October 14, 2010, the Manager instructed Complainant's Supervisor to give him
a Pre-Disciplinary Interview (PDI); and
4. On November 26, 2010, he was issued a Letter of Warning.1

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 but subsequently withdrew
his request after incurring severe facial injuries when he was attacked on a bus. Consequently,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected him to discrimination as
alleged.
ANALYSIS AND FINDINGS

Both the Manager and Complainant’s supervisor were of the same color and national origin as
Complainant, and both denied awareness of his prior protected activity. Upon review of the
record, the Agency explained its actions. Specifically, Complainant was replaced on the
“Hi/Low” on the day in question because another employee needed it to move pallets, was
charged LWOP for two days when he did not report to work, and was disciplined for failing to
complete a dispatch. These are legitimate and non-discriminatory reasons and well within the
range of a Manager’s appropriate authority. Complainant presents no persuasive argument that
these explanations are unworthy of belief. Further, the Manager in question denied that he
disrespected and threatened Complainant.

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, national origin, color, or prior
protected activity. Only if complainant establishes both of those elements, does the question of
vicarious liability for supervisory harassment present itself.

It is clear from the record that Complainant believed that the Manager intentionally
disrespected him by refusing to address him by his own name, i.e., constantly addressing him
as “hey you,” and by behaving in a manner that was not professional, was potentially
intimidating and was sometimes just mean. However, even if we assume that the Manager’s
conduct towards Complainant was severe or pervasive enough to create a hostile work
environment, the record does not support the conclusion that the conduct was taken because of
Complainant’s protected classes. Complainant himself offers no evidence that those outside of
his protected classes were treated more favorably by the Manager or any other evidence from

1 The Agency dismissed a claim concerning Complainant not being allowed to perform his
preferred assignments on January 4-5, 2011. Complainant has not challenged the dismissal on
appeal so we decline to address it further.
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which a reasonable fact finder could link his color, national origin or protected activity to the
Manager’s conduct.

For the reasons set forth above, we conclude that Complainant fails to prove that he was
discriminated against and harassed as alleged. The Agency’s final decision is AFFIRMED.

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 tends 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

March 20, 2013
Date