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

Equal Employment Opportunity Commission

Mar 7, 2013

0120114137 (E.E.O.C. Mar. 7, 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
(Southeast Area),
Agency.

Appeal No. 0120114137

Agency No. 4H-330-0319-10

DECISION

On September 6, 2011, Complainant filed an appeal from the Agency’s August 15, 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 Letter Carrier at
the Agency’s Country Lakes Post Office in Miami, Florida. On June 15, 2010, Complainant
was assigned to Route 7718. He carried the “Red Plum” circular for delivery but failed to
scan its barcode, thus precluding the Agency from certifying its actual delivery. On June 22,
2010, his supervisor (S1) conducted an investigative interview to determine why Complainant
failed to scan the circular, but Complainant responded that there was no evidence of his failure
to do so. Complainant did not feel like S1 was allowing him to present his side of the story
and so announced to S1 and his union representative that he wanted to file a grievance and an
EEO complaint, at which point S1 became enraged. S1 called Complainant “a fucking
scumbag” among other names and threw some paperclips at Complainant. The Officer in
Charge conducted an investigation, and S1 was subsequently disciplined for violating the
Agency’s zero tolerance policy for violence in the workplace. On June 24, 2010, Complainant
received a Letter of Warning which was subsequently reduced to a discussion via a grievance
settlement.

0120114137

2
On August 26, 2010, Complainant filed an EEO complaint alleging that the Agency harassed
him in retaliation for his prior protected activity when he was subjected to an Investigative
Interview and when he received a Letter of Warning. The Agency dismissed the complaint for
being moot. The Commission reversed the dismissal and remanded the complaint for
investigation. v. United States Postal Serv., EEOC Appeal No. 0120110379 (March 2,
2011). 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). In accordance with Complainant’s request, 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 retaliated against him. From that decision, Complainant brings
the instant appeal.

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

Complainant did not request a hearing, so the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing and can only evaluate the
facts based on the weight of the evidence presented. While Complainant denies that he failed
to scan the circular, the record contains objective evidence that the Red Plum circular was not
scanned on Route 7718 on the day in question. See Complaint File at 431. Complainant does
not deny that he carried Route 7718 that same day. Thus, we conclude that he did fail to scan
the circular. The Agency explained that Complainant was investigated and subsequently issued
a Letter of Warning for failing to scan a saturation mailing. There is nothing in the record to
suggest that this was not the real reason for the actions at issue.1

We therefore find that the
discipline was not motivated by retaliatory animus.
Assuming arguendo that S1’s tantrum was motivated by Complainant’s expression of his intent
to exercise his EEO rights, we still cannot conclude that Complainant was the victim of
harassment. The incident involved profanity and the throwing of some paperclips. It was of
extremely short duration and did not recur. Although clearly an example of unprofessionalism,
we decline to find it sufficiently severe or pervasive to have rendered the work environment
hostile and abusive. For these reasons, we AFFIRM the Agency’s final decision.

1 The fact that the Letter of Warning was reduced to an official discussion via the grievance
process underscores that discipline was warranted for the infraction, and there is no evidence
that harsher discipline, than what was warranted, was issued in reprisal for Complainant’s
protected activity.
0120114137

3

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.

0120114137

4
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 7, 2013
Date