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

Equal Employment Opportunity Commission

Sep 4, 2013

0120113561 (E.E.O.C. Sep. 4, 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
(Western Area),
Agency.

Appeal No. 0120113561

Hearing No. 540-2011-00133X

Agency No. 4E-840-0035-10

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
August 4, 2011 final Agency decision (FAD) 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.1

The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Holladay Branch Post Office in Salt Lake City, Utah. On May 10, 2010,
Complainant filed a formal complaint alleging that the Agency discriminated against him on the
bases of sex (male), age (61), and in reprisal for prior protected EEO activity when:

1. Since December 2009, he was forced to only take parcels to a patron’s door and put
mail in the mailbox;
2. On an unspecified date, he was charged with taking an extended break;
3. On an unspecified date, his supervisor improperly followed him on his route; and
4. On an unspecified date, his supervisor wanted to know when he would retire.

1 Complainant's initial appeal of the Administrative Judge’s dismissal of his hearing request
was premature; however, the Agency’s subsequent issuance of the FAD has cured the defect.
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On May 27, 2010, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(1) for stating the same claims previously decided by the Agency. Complainant
appealed and in, v. U.S. Postal Serv., EEOC Appeal No. 0120102972 (Oct. 29,
2010), the Commission reversed the Agency’s dismissal and remanded the complaint for
further processing.

The Agency subsequently accepted additional claims and amended the pending complaint to
include the following related claims:

5. On November 18, 2010, Complainant was ordered to change the location of where
he placed bulk mail and accused of wasting time, he was ordered to place his bag
and notebook at his case, and he was ordered to change the location of his bathroom
break;
6. On November 18, 2010, he was taken off his route and off the clock and sent home
to obtain his driver's license;
7. On November 20. 2010, he was subjected to an investigative interview and falsely
accused of wrongdoing;
8. On November 27, 2010, he was issued a Letter of Warning for Failure to Follow
Instructions/Failure to Possess Driver's License;
9. On unspecified dates, he was checked in by a management person after returning
from his route;
10. On unspecified dates, he was questioned about his scan points;
11. On unspecified dates, he had had his vehicles vandalized or tampered with, but was
precluded from filing a complaint;
12. On September 9, 2010, he was told he could not call management offices for
assistance;
13. On December 15, 2010, he was followed on his route and his supervisor interrupted
his lunch; and
14. On December 17, 2010, he was issued a seven-day suspension for failure to follow
instructions.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ subsequently
dismissed the hearing request as a sanction based upon Complainant’s failure to comply with
the Agency’s discovery requests and for his failure to follow the AJ’s orders. The AJ
remanded the complaint to the Agency for issuance of a decision pursuant to 29 C.F.R.
§ 1614.110(b). The Agency issued a FAD on August 4, 2011.

In the FAD, the Agency determined that management articulated legitimate, nondiscriminatory
reasons for its actions.2

2 The Agency again dismissed claims (1) – (4) for stating the same claims previously decided.
Additionally, the Agency dismissed claim (12) pursuant to 29 C.F.R. § 1614.107(a)(2) as
Regarding claim (1), Complainant’s supervisor (S1) affirmed that she
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ordered Complainant to only deliver parcels to a customer’s door and to leave their mail in the
mailbox because she had observed him inefficiently going back and forth between the mailbox
and the front door. As to claim (2), Complainant’s second-level supervisor (S2) asserted that
Complainant was in the break room and extended his break by five minutes. She states that
she went in the break room and told him he had gone over his break time and he needed to go
back to his case to work. With respect to claim (3), S2 declared that Complainant continually
did not follow instructions and did not make his estimated times; therefore, S1 performed
street observations on Complainant as well as all carriers. Regarding claim (4), S2 stated that
Complainant had previously told her that he would retire when the Postmaster retired. She
maintained that when the Postmaster retired, she then asked Complainant if that meant he
would be retiring since he had earlier made the statement.

As to claim (5), S1 asserted she never instructed Complainant to put bulk mail on the dock.
Instead, she instructed him to put his personal effects at his case and not in his parcel-post
gurney because he was not following the carriers’ flowchart, which resulted in time
inefficiency and him not being ready for work when he clocked in. In addition, she claimed
that to be more time-efficient on his route, management received authorization for him to use
an elementary school’s bathroom on his route and a gas station’s bathroom if the school was
closed.

Regarding claims (6) – (8), S1 affirmed that she performed a driver’s license check on
Complainant on November 19, 2010, and he did not have his driver’s license on him. She
asserted that she told him he would need to go home and get his license and submit a leave slip
for the time used to go home. While Complainant submitted a leave slip, he was not charged
with leave because he worked a full eight hours that day. Management later conducted an
investigative interview with Complainant regarding S1’s observation of his unsafe driving on
November 19, 2010, and questioned him about not having his driver’s license. S1
subsequently issued Complainant a Letter of Warning for not following instructions and not
having his driver’s license in his possession.

With respect to claim (9), S1 stated that a clerk was responsible for checking carries in for
accountables at the end of the day, but if a clerk was not available, a management official
would do so. S1 noted that Complainant was not checked in by management any more than
any other carrier in the office. As to claim (10), S1 asserted that the figures used to determine
whether scan points had been done appropriately were automatically generated. When the
system reported an anomaly, she was required to investigate. As a result, on several
occasions, Complainant’s scan points were not within normal parameters so she asked him
about them.

With regard to claim (11), S1 affirmed that Complainant initially informed her about alleged
vandalism to his car, but he did not say he wanted to file a complaint. Complainant later asked

untimely. However, the Agency analyzed these claims as background evidence of
Complainant’s hostile work environment claim.
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if he had told S2 about his complaint. S1 informed S2 about his complaint and S2 said that
Complainant could file his complaint when he had “under-time” available. S1 informed
Complainant and he subsequently filed a complaint. As to claim (12), S2 asserted that the
Family Medical Leave Act (FMLA) Office only asked her to tell Complainant not to call the
FMLA Office about Office of Workers’ Compensation Programs (OWCP) questions because
they were two different offices and the FMLA coordinators did not have any knowledge of
OWCP matters.

With respect to claim (13), S1 maintained that she observed Complainant on his route on
December 15, 2010, and she was informed that Complainant had stopped at a restaurant at the
beginning of his route. She questioned Complainant after she saw him take a second break at
the same restaurant. S1 left after Complainant explained that he had only taken a break earlier
and this was his lunch break. Finally, as to claim (14), Complainant’s third-level supervisor
(S3) stated that Complainant missed arriving at the station in time for the last dispatch and
failed to notify management in advance. Complainant had previously been instructed to notify
management if he was not going to make the last critical dispatch. As a result, Complainant
was issued a seven-day suspension.

The Agency concluded that Complainant presented no evidence showing that management’s
reasons for its actions were pretextual. Further, the Agency found that the alleged incidents
were not sufficiently severe or pervasive to establish a hostile work environment. As a result,
the Agency held that Complainant had not been subjected to a hostile work environment,
discrimination, or reprisal as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in dismissing his hearing request.
Complainant argues that the AJ was not objective and that he requested a new AJ numerous
times. Complainant states that the record shows that the management violated rules and
regulations and discriminated against him. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS

The AJ’s Dismissal of Complainant’s Hearing Request

As an initial matter, the Commission shall address Complainant's objections to the manner in
which the AJ managed and adjudicated his complaint. Complainant alleged that the AJ was
biased against him dating back to a previous hearing. In addition, Complainant challenges the
AJ’s sanction of dismissing his hearing request. The Commission notes that EEOC regulations
and Commission precedent provide AJs with broad discretion in the conduct of a hearing and
related proceedings. See 29 C.F.R. § 1614.109; see also EEO MD-110, at 9-10. Further, an
AJ has the authority to sanction either party for failure without good cause shown to fully
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comply with an order. 29 C.F.R. § 1614.109(f)(3); EEOC Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), Chap. 7, 9-10 (1999).

The Commission has reviewed the documentary evidence in the record and finds that the AJ
acted within her discretion to dismiss Complainant's hearing request when Complainant failed
to comply with the AJ's orders. The record reflects that both parties were notified that failure
to follow the orders of the AJ or comply with the Commission regulations may result in
sanctions, pursuant to 29 C.F.R. § 1614.109(f) (3). The AJ found, and the Commission
agrees, that Complainant did not follow the orders of the AJ by failing to respond substantively
to the Agency’s discovery requests. Complainant was given the opportunity to show cause
why sanctions should not be issued against him, but he failed to respond. Accordingly, the AJ
properly dismissed Complainant's hearing request. See 29 C.F.R. § 1614.109(f)(3).
Furthermore, the Commission is unable to find any evidence of bias, or other reversible error,
resulting from the manner in which the AJ managed this case.

Hostile Work Environment

Turning to the merits of the instant case, the Commission notes that harassment of an employee
that would not occur but for the employee's race, color, sex, national origin, age, disability,
religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole,
765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v.
Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is
hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
Enforcement Guidance at 6. The Supreme Court has stated that: “Conduct that is not severe or
pervasive enough to create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's purview.” Harris, 510
U.S. at 22 (1993).

Here, Complainant asserted that based on his protected classes, he was continuously subjected
to a hostile work environment. Complainant has cited numerous incidents where Agency
management took actions that seemed adverse or disruptive to him including, he was
improperly watched and followed on his route; S1 asked when he would retire; he was taken
off the clock and sent home to obtain his driver’s license; he was disciplined several times;
and, he was told he could not call management offices for assistance. Even assuming that the
conduct alleged was sufficiently severe or pervasive to create a hostile work environment, the
Commission finds that Complainant failed to show that any of the alleged incidents were
unlawfully motivated by discriminatory or retaliatory animus.

Specifically, S1 affirmed that she instructed Complainant on how to deliver a customer’s
parcels and mail after she observed him performing inefficiently. ROI, at 330. As to being
accused of taking an extended break, S2 stated that she went in the break room and told
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Complainant that he had gone over his break time and that he needed to go back to his case at
work. Id. at 368. S2 denied saying anything to anyone on the workroom floor about
Complainant extending his break. Additionally, S2 maintained that she only asked
Complainant about retirement because the Postmaster had retired and Complainant previously
mentioned that he would retire around the same time. Id. at 369.

Regarding his claim that he was improperly followed on his route, S2 affirmed that
Complainant frequently did not follow S1’s instructions and failed to make his estimates;
therefore, S1 began performing street observations on him. ROI, at 369. S1 confirmed that
on December 15, 2010, she questioned Complainant during his lunch break after she was
informed that he was taking a break at the same restaurant that he stopped at earlier on his
route. However, S1 stated that she left after Complainant explained that he had not taken an
earlier break at the restaurant and was now taking his lunch break. Id. at 332.

As to his claim regarding his personal items and being accused of wasting time, S1 affirmed
that she only instructed Complainant to put his personal effects at his case and not in his postal
post gurney because he was not following the Agency’s flowchart. ROI, at 330. S1
maintained that this resulted in time inefficiency and Complainant not being ready to work
when he clocked in. Id. As to changing the location of his bathroom break S1 confirmed that
management received authorization for him to take breaks at an elementary school and at a gas
station when the school was closed. Id. at 330-31.

With respect to being sent home, S1 confirmed that she instructed Complainant to go home and
get his driver’s license after she discovered he did not have it with him on November 19,
2010. ROI, at 331. Complainant submitted a leave slip, but was not charged leave. Id. S1
conducted an investigative interview with Complainant regarding her observation of his unsafe
driving and questioned him about not having his driver’s license. Id. Complainant was
subsequently issued a Letter of Warning for failing to follow instructions/failure to possess
driver’s license. Id. at 349. As to his claim that management violated Agency regulations by
checking him in, S1 stated that a clerk was primarily responsible for checking carriers in at the
end of the day; however, a management official may do so if a clerk was not available. ROI,
at 331. S1 noted that Complainant was not checked in any more than any other carrier. Id.
With respect to his claim regarding scan points, S1 declared that scan point figures are system-
generated and she was required to investigate when Complainant’s were not within normal
parameters. Id.

Regarding his claim that he was precluded from filing a complaint about his car being
vandalized, S1 affirmed that Complainant filed a complaint when he had “under-time”
available. ROI, at 332. With respect to his claim that he was told he could not call
management offices for assistance, S2 stated that Complainant was only instructed to not call
the FMLA Office for OWCP questions since they are two separate offices. Id. at 370.
Finally, S1 issued Complainant a seven-day suspension after he missed the last critical dispatch
and failed to notify management in advance. Id. at 354. Complainant’s prior discipline was
considered in arriving at this decision.
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The Commission concludes that Complainant has not shown that any of the Agency's actions
were based on discriminatory or retaliatory animus. Accordingly, the Commission finds that
the Complainant was not subjected to a hostile work environment as alleged. Further, to the
extent that Complainant is alleging disparate treatment with respect to his claims, the
Commission finds that he has not shown that the Agency's reasons for its actions were a
pretext for unlawful discrimination or reprisal. As a result, the Commission finds that
Complainant has not established that he was subjected to discrimination, reprisal, or a hostile
work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the FAD because the preponderance of the record evidence does not establish that
discrimination occurred.

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
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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
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

September 4, 2013
Date