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

Equal Employment Opportunity Commission

May 15, 2013

0120121818 (E.E.O.C. May. 15, 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. 0120121818

Hearing No. 480-2011-00480X

Agency No. 1E-891-0014-09

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
February 6, 2012 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq. 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 Mail Processing
Clerk at the Agency’s Processing and Distribution Center in Las Vegas, Nevada. Complainant
held a bid assignment on Tour 1 in the Box Section. The Tour 1 Box Section had numerous
ongoing conflicts among the employees over the years and multiple Box Section employees
registered complaints on the threat assessment hotline. In November 2008, the Tour 1
Distribution Operations Manager (M1) asked the Workplace Environment Analyst and the
Labor Relations Specialist to conduct a fact-finding investigation to assess the problems in the
Box Section. Employees in and around the Box Section were interviewed. On December 22,
2008, the Labor Relations Specialist submitted the findings of the investigation to M1. The
report concluded that the Box Section had divided into two groups. One group included
Complainant and two other Clerks. The second group complained that this group regularly
gave them dirty looks, used profanity and made inappropriate comments, bullied and
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intimidated other Clerks, and routinely misreported or delayed mail. Complainant’s group
complained that the other Clerks were the harassers, did not help, and called them names. The
report recommended, among other things, that management review the Employee Conduct
Policy with all employees, provide greater supervisory presence in the Box Section, and
reemphasize expectations with all Box Section employees. A new supervisor (S1) was
assigned to the Box Section to implement the recommendations.

In January 2009, M1 again received complaints from Clerks regarding Complainant and
another Clerk (CW1) creating a hostile work environment. M1 opened another investigation
into the complaints. Pursuant to the Agency’s policy, M1 temporarily reassigned Complainant
and CW1 to the Manual Letters Section while the investigation into the allegations against them
was being conducted.

While in the Manual Section, Complainant requested that anti-fatigue matting be installed as an
accommodation. Management had previously installed matting in the Box Section as part of an
EEO settlement agreement in November 2006. Complainant claimed that M1 informed him
that she could not provide the matting accommodation. Complainant did not return to the Box
Section and subsequently retired effective July 31, 2009.

On April 19, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(Caucasian), sex (male), disability, age (61), and in reprisal for prior protected EEO activity
when on February 9, 2009, he was assigned duties other than his bid position and he was
denied reasonable accommodation.

Initially, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for
untimely filing of the formal complaint. In v. U.S. Postal Serv., EEOC Appeal No.
0120092691 (Mar. 10, 2011), the Commission vacated the dismissal and remanded the
complaint for further processing. 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.

On July 22, 2011, the AJ assigned to the case granted Complainant’s motion to amend to
include a hostile work environment claim. In her order, the AJ provided Complainant 15 days
to identify each incident comprising his hostile work environment claim. Additionally, the AJ
provided Complainant the opportunity to present proof that he raised his claim of constructive
discharge within 45 days from the date of his retirement or to provide some reason that
equitable tolling should apply. On August 6, 2011, Complainant responded to the AJ’s order
listing numerous examples of the alleged harassing conduct, including that his complaints about
co-workers were ignored; co-workers made false accusations against him; management
conducted a fact-finding investigation against him; and the Union President threatened to fire
him. In addition, Complainant stated that his constructive discharge claim should be accepted
because it was inextricably linked to the original claims of hostile work environment and denial
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of reasonable accommodation. Prior to the AJ’s ruling on those responses, Complainant
withdrew his request for a hearing and requested an immediate FAD. On September 28, 2011,
a newly-assigned AJ remanded the complaint to the Agency for a FAD.

The Agency conducted a supplemental investigation into Complainant’s hostile work
environment claim and provided Complainant with a copy of the supplemental report of
investigation (SROI). On February 6, 2012, the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination on the alleged bases and found that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, M1 affirmed that she reassigned
Complainant and CW1 due to allegations from other Clerks that they were creating a hostile
work environment. M1 confirmed that she had received letters from 8 co-workers stating that
Complainant and CW1 had called them names and were not doing their share of the work. As
a result of the investigation into those allegations, Complainant and CW1 were taken out of the
Box Section and temporarily reassigned to the Manual Letters section. M1 stated that once the
investigation was completed she informed Complainant that he could go back to his bid
position in the Box Section. Instead, Complainant refused stating that he believed his job was
in jeopardy due to the allegations against him. As a result, management allowed Complainant
to stay in the Manual Section.

Regarding his reasonable accommodation denial claim, M1 affirmed that prior to February
2009, all of the Box Section employees stated that mats were necessary due to their standing on
a concrete floor for prolonged periods of time. As a result, management agreed to install the
mats. M1 stated that in February 2009, when Complainant was reassigned to the Manual
Section, he had no restrictions and had requested no accommodations. M1 noted that
Complainant actually informed her that he could do whatever the other Manual Clerks did and
needed no accommodations. Nonetheless, M1 confirmed that there were mats in the Manual
Section for Clerks to stand on if distributing flats, which usually only took about an hour.
Further, there were rest bars so that Clerks were able to distribute mail without standing on
their feet. As a result, the Agency concluded that Complainant had not been denied reasonable
accommodation in violation of the Rehabilitation Act.

Regarding the allegations comprising his hostile work environment, the Agency determined
that there was no evidence to support his claims. Particularly, with respect to his claim that
his threat assessment claim against a co-worker went unprocessed, M1 confirmed that there
were numerous complaints from Box Section employees. The Labor Relations Specialist and
the Workplace Environment Analyst conducted an investigation into the numerous complaints
from Box Section employees, including Complainant, about the workplace environment at the
request of M1. The investigation revealed that the employees did not like each other and all
had a complaint against one another. M1 did not discipline any employee; however, she
instructed the employees to stop all name-calling and their newly assigned supervisor provided
expectations.
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As to Complainant’s claim regarding the Union President, S1 confirmed that the Union
President told him that if S1 needed any help firing Complainant that he would help him. In
response, S1 notified M1 about the comments and M1 ordered the Union President to stay
away from Complainant. S1 noted that the Union President did not have authority to remove
anyone.

The Agency concluded that the alleged incidents were not sufficiently severe or pervasive to
establish a hostile work environment. Additionally, there was no evidence that any of the
alleged incidents were based on discriminatory or retaliatory animus. As a result, the Agency
concluded that Complainant had not been subjected to discrimination, reprisal, or a hostile
work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency improperly conducted a supplemental
investigation into his hostile work environment claim and failed to provide him hearing rights
after the supplemental investigation. Further, Complainant contends that management
retaliated against him by not investigating his threat assessment complaints against co-workers
and reassigning him and CW1. In addition, Complainant alleges that as a result of the
involuntary reassignment and the hostile work environment, he was forced to retire.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

The Supplemental Investigation

As an initial matter, the Commission will address Complainant’s contention that the Agency
improperly conducted a supplemental investigation into his hostile work environment claim and
failed to provide him the opportunity to request a hearing after that investigation. The record
is clear that Complainant requested a hearing as to his initial claims and the AJ assigned to the
case subsequently granted Complainant’s motion to amend to add a hostile work environment
claim. Soon thereafter, Complainant withdrew his request for a hearing and requested an
immediate FAD. The record reveals that at the time Complainant withdrew his hearing
request, both parties had only initiated discovery. Nonetheless, the AJ granted Complainant’s
motion to withdraw his hearing request prior to the completion of discovery and remanded the
complaint for a FAD. As a result, Complainant’s hostile work environment claim had not
been investigated and no hearing record regarding the claim had been developed. The Agency
then initiated a supplemental investigation to cure this defect.

On appeal, Complainant contends that the Agency’s supplemental investigation was improper
as the AJ only ordered the Agency to issue a FAD. The Commission is not persuaded by this
argument. Agencies are required to develop an impartial and appropriate factual record upon
which to make findings on the claims raised by a complainant. See 29 C.F.R. § 1614.108(b).
An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as
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to whether discrimination occurred. Id. As Complainant withdrew his hearing request prior to
the development of a full record at the hearing level, the Agency was required to develop an
appropriate factual record to adjudicate the hostile work environment claim. Thus, the
Commission finds that the Agency acted appropriately in conducting a supplemental
investigation.

In addition, the Commission is not persuaded by Complainant’s argument that he should have
been provided the right to request a hearing after the supplemental investigation. Complainant
chose to withdraw his hearing request while his amended complaint was before the AJ. If
Complainant wanted to have the record developed before an AJ and preserve his right to a
hearing, he should not have abandoned the hearing process and proceeded before the AJ.
Accordingly, the Commission finds that the Agency did not err by not providing Complainant
hearing rights after the supplemental investigation.

Disparate Treatment

Turning to the merits of the instant complaint, to prevail in a disparate treatment claim,
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 Constr. Corp.
v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this
case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for
its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 531) U.S. 133.143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993);
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the
Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

In the instant case, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, M1 affirmed that, pursuant to Agency
policy, she temporarily reassigned Complainant out of the Box Section while an investigation
was conducted into his co-workers’ complaints that he and CW1 were causing a hostile work
environment. ROI, at 205. When the investigation was complete, M1 informed Complainant
that he could return to the Box Section; however, he believed that his job was in jeopardy if he
returned so he stayed in the Manual Section. Id.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
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Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256. The Commission finds that the record is devoid of any persuasive
evidence that Complainant’s protected classes were factors in the Agency's actions. At all
times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the
evidence that the Agency's reasons were not the real reasons and that the Agency acted on the
basis of discriminatory or retaliatory animus. Complainant has failed to carry this burden.
Accordingly, the Commission finds that Complainant has failed to show that he was
discriminated or retaliated against as alleged as to this claim.

Denial of Reasonable Accommodation

Under the Commission's regulations, an Agency is required to make reasonable
accommodation to the known physical and mental limitations of a qualified individual with a
disability unless the Agency can show that accommodation would cause an undue hardship.
See 29 C.F.R. §§ 1630.2 (o) and (p). The Commission shall assume without deciding (for the
purposes of this decision) that Complainant is a qualified individual with a disability.

Complainant claims that management failed to accommodate him after he was reassigned to the
Manual Section. The record indicates that Complainant and other Box Section employees were
provided anti-fatigue mats as a result of an EEO settlement agreement in November 2006.
When Complainant was moved to the Manual Section, he claims he requested matting be
installed there as an accommodation. There is no evidence in the record that Complainant was
under any medical restrictions at the time, and M1 maintained that she was unaware that he
was under any. ROI, at 204. Nonetheless, M1 noted that the work in the Manual Section was
actually less physical than the Box Section because Complainant would not have to stand for
eight hours. Id. at 206. Further, M1 added that there were rest bars in the Manual Section
where employees were able to distribute mail without standing on their feet. Id. at 209.
Finally, M1 confirmed that there mats in the flats area as well and employees were only
assigned work there for about an hour. Id. Complainant has presented no evidence showing
that the provided accommodations were ineffective. Accordingly, the Commission finds that
Complainant has not established that the Agency failed to provide him reasonable
accommodation in violation of the Rehabilitation Act.

Hostile Work Environment/Constructive Retirement

As to Complainant’s hostile work environment claim, 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);
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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, management and his co-
workers continuously subjected him to a hostile work environment. Complainant has cited
several incidents where Agency officials and co-workers took actions that seemed adverse or
disruptive to him. More specifically, Complainant alleged that his threat assessment
complaints about co-workers were ignored; co-workers made false accusations against him;
M1 improperly initiated a fact-finding investigation into complaints against him; and, the
Union President attempted to get him fired. The record reveals that in November 2008, M1
ordered an investigation into numerous complaints about the workplace environment in the Box
Section, including Complainant’s complaints against co-workers. SROI, at 268-69. That
investigation showed that employees did not like each other and all had complaints. Id. at 269.
M1 instructed all employees to stop name-calling and the new Box Section supervisor provided
expectations to each employee. Id.

After the first investigation into the workplace environment in late-2008, M1 conducted
another investigation after receiving multiple complaints about Complainant and CW1. SROI,
at 275. As discussed above, Complainant and CW1 were reassigned from the Box Section
while the investigation was conducted. Id. at 275-76.

As to Complainant’s allegations relating to the Union President, S1 confirmed that the Union
President told him that if he needed any help in terminating Complainant that he would assist.
SROI, at 346. S1 stated that he had no intention of terminating Complainant and immediately
informed M1 of the incident. Id. at 346-47. M1 then met with the Union President and
instructed him to stay away from Complainant. Id. at 270.

The record is clear that the Box Section was rife with ongoing personal conflicts and low
morale; however, the Commission’s laws are not a general civility code. Rather, they forbid
“only behavior so objectively offensive as to alter the conditions of the victim's employment.”
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).” 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. As a result, the Commission
finds that Complainant was not subjected to a hostile work environment as alleged.

Finally, to the extent that Complainant alleges that the Agency’s alleged discriminatory actions
forced him to retire, as discussed above, Complainant has not proffered any persuasive
evidence that the Agency’s actions were motivated by discriminatory or retaliatory animus.
Therefore, Complainant’s constructive retirement allegation fails.

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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 Agency’s final decision because the preponderance of the evidence of record 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 (Nov. 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.
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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

May 15, 2013
Date