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

Equal Employment Opportunity Commission

Dec 4, 2014

0120141132 (E.E.O.C. Dec. 4, 2014)

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
(Southeast Area),
Agency.

Appeal No. 0120141132

Hearing No. 510-2012-00401X

Agency No. 4G330014512

DECISION
On January 31, 2014, Complainant filed an appeal from the Agency’s January 2, 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 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 order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Palms West Post Office in West Palm Beach, Florida. On May 11, 2012,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (African-American), religion (Christian), color (Black), and age (54) when:

1. the Agency directed demeaning remarks at Complainant and/or threatened to
discipline Complainant; and
2. the Agency denied Complainant overtime.1

1 The complainant originally contained a third claim that was subsequently withdrawn before
the case was addressed on the merits.

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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. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for summary judgment
and issued a decision on December 20, 2013. 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.

ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision
without a hearing on this record. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.

, 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the case. For the reasons set
forth below, we find that summary judgment was appropriate here.
Harassment

It is well-settled that harassment based on an individual's race, color, age, religion or other
protected classes is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
In order to establish a claim of harassment under those bases, Complainant must show that: (1)
he belongs to the statutorily protected classes and engaged in prior EEO activity; (2) he was
subjected to unwelcome conduct related to his membership in those classes; (3) the harassment
complained of was based on his membership in those classes; (4) the harassment had the
purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee

, 682 F.2d 897 (11th Cir. 1982).
Here, Complainant alleges that his supervisor, S1, routinely subjected him to demeaning
remarks and threats of discipline in connection with S1’s criticism of Complainant’s
performance of his letter carrier duties. The record contains a collection of 13 preprinted
forms entitled “Abusive Supervisor Incident Worksheet” completed by Complainant in which
Complainant describes S1’s abusive behavior in a series of incidents in January through March
2012. In addition to a space entitled “Description of the Abusive Incident” which Complainant
completed on all of the forms, each form contains a section entitled “Nature of the Abusive
Event (Circle all that Apply).” In that section on many of the forms Complainant circled the
following descriptors “Overly Demeaning,” “Sarcastic Remarks,” “Yelling,” “Threats of
Discipline or Removal.” Significantly, each form also contains an additional descriptor which
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Complainant circled only twice on the 13 forms: “other specifics (Race, Religion, Gender,
etc.)”

In this case, there is no evidence that any of the claimed harassing actions undertaken by
Agency management or by Complainant’s co-workers were based on his race, color, age or
religion. There is no evidence of a racist slur or age or religion-based ridicule that would
support an inference of discriminatory animus. The detailed information set out in
Complainant’s Abusive Supervisor Incident Worksheets suggests that S1’s animus toward
Complainant was based on personality conflict rather than being motivated by Complainant’s
membership in any protected classes. In the two instances in which Complainant indicated that
“race” was the cause of the supervisor’s abusive behavior, no details supporting that claim are
provided. Without evidence of discriminatory animus, Complainant’s harassment claim fails.

Disparate Treatment (Denial of Overtime)

Complainant alleges that he was discriminatorily denied overtime work. He has identified one
coworker (CW1) as a comparator outside his protected classes who was treated more
favorably, in that CW1 was not denied overtime. 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). He must
generally establish a prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters

, 438 U.S. 567, 576 (1978).
Complainant must adduce evidence that the named comparators were similarly situated
employees who were treated more favorably than he. Morrow v. United States Postal Service,
EEOC Doc. 05921036 (April 15, 1993). To meet this standard, all relevant aspects of the
employees' work situation must be identical or nearly identical, i.e., that the employees report
to the same supervisor, perform the same job function, and work during the same periods.
Here, Complainant has identified CW1 as a comparator who was not denied overtime.
However, Complainant has adduced no evidence to support the conclusion that CW1 was
similarly situated to Complainant with respect to tour worked, requests for overtime or
availability of overtime, such that an inference of discrimination could be drawn by a
reasonable finder of fact. Therefore, Complainant cannot prevail on his claim of disparate
treatment discrimination.

CONCLUSION
For the foregoing reasons, the Agency’s final order implementing the AJ’s finding of no
discrimination is AFFIRMED.

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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.

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
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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
December 4, 2014