Gregg B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

0120181781 (E.E.O.C. Sep. 10, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Gregg B.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120181781

Agency No. 1F-957-0075-17

DECISION

On April 13, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 8, 2018, 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., 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. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the Agency’s final decision (FAD) correctly determined that Complainant did not
establish that he was subjected to discrimination and discriminatory harassment on the basis of
race, color, religion, national origin, sex, sexual orientation, age, retaliation (prior EEO Activity),
and disability when:

1. On July 12, 2017, he was issued a Letter of Warning (LOW) for Unacceptable Conduct;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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2. On a date(s) to be specified, he informed management that two coworkers harassed him,
and management failed to take action;

3. On or around October 19, 2017, he was assigned to pick up “Courtesy” and he had to pass
by the two coworkers who were harassing him.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the
Agency’s Processing and Distribution Center (P&DC) facility in Fresno, California. On October
12, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him
on the bases of race (Bi-Racial/Multi-Racial), national origin (Mexican), sex (male), sexual
orientation, religion (Catholic), color (brown), disability (physical), age (52), and reprisal for prior
protected EEO activity as set forth above. Complainant alleged that Supervisor Distribution
Operations(SDO), Manager Distribution Operations (MDO), and Senior Plant Manager (SPM)
were the responsible management officials who discriminated against him.

Claim 1:

Complainant stated that he was issued a LOW following an incident which involved the Postal
Inspection Service. He stated that he was on his way home from work when he noticed a coworker,
C1, pulling into a gas station; and that he pulled in to ask C1 if he had a problem with him and,
when he got out of his vehicle, he noticed that C1 had some type of a weapon. Complainant stated
that C1 told him, “Bring it, I’ll fuck you up.” Complainant asserted that two gas station employees
came out and asked what was going on, to which he responded that it was an issue from work, and
they told him to take the dispute somewhere else.

Complainant stated his belief that this action was based on his race because management has
always sided with the Black employees; that it was based on his color because C1 is African-
American, as were prior supervisors and managers; that it was based on his religion because he is
supposed to be the bigger person and forgive; that it was based on his sex and sexual orientation
because it would have been taken more seriously if a Female complained about harassment; that
it was based on his national origin because, being Hispanic, he is not treated equally; that it was
based on his age because he is older and the Agency would like to weed him out; that it was based
on his disability because he does not move fast and they would like to weed him out; and that it
was based on his prior EEO activity because management retaliates for EEO participation.

As comparators, Complainant identified three coworkers who he stated were treated more
favorably than he with respect to discipline, adding that they were all harassed by other coworkers.
C3 and C4 are female Mexicans and brown; C3 has prior EEO activity but Complainant did not
know if C4 does.

2 Complainant explained that “Courtesy” is the term used for picking up mail at the front of the
facility.
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C5 is a White Male but Complainant also did not know if he has prior EEO activity either; and he
did not know the religion, national origin, age, and work restrictions of any of these coworkers.

SDO asserted that he did not know Complainant’s race, religion, sexual orientation, national
origin, or age, adding that Complainant’s protected classes were not considered as factors when
he was issued a LOW. He acknowledged that Complainant received the LOW, indicating that
Complainant violated agency policies when he threatened a fellow employee with a knife on June
9, 2017 and was not truthful with his early statements about the incident. He added that
Complainant’s position changed after he was informed that the event, which was investigated by
the Postal Inspection Service, had been recorded on video.

SDO asserted that he has no information regarding any of the comparators identified by
Complainant; and that he has never met any of them. He however stated that C1 is a Mail Handler
whose color is Dark, sex is Male, and who has no work restrictions or prior EEO activity, adding
that he did not know C1’s race, religion, sexual orientation, national origin, or age.

SDO indicated that C1 was issued discipline for unacceptable conduct based on a harassment
complaint from another employee. He identified C6, a White female Clerk who has no work
restrictions or prior EEO activity who was also issued discipline for unacceptable conduct based
on a harassment complaint from another employee, adding that he did not know her race, religion,
sexual orientation, national origin, or age.

SDO identified C7, a dark-colored male Mail Handler who has no work restrictions, but has prior
EEO activity, who was issued discipline for unacceptable conduct based on a harassment
complaint from another employee, adding that he did not know C7’s race, religion, sexual
orientation, national origin, or age.

MDO affirmed SDO’s statements regarding all identified comparators. She stated that she
concurred with SDO’s decision to issue Complainant the LOW due to his unacceptable conduct
and lack of candor. She stated that she did not know Complainant’s race, color, religion, or sexual
orientation, asserting that Complainant’s protected classes were not considered as factors when he
was issued the LOW.

SPM asserted that she was notified that a LOW had been issued to Complainant but that she did
not see the letter.

Claim 2:

Complainant alleged that he informed SDO, MDO, and SPM of harassment by coworkers, C1 and
C2 on numerous dates between July and November 2017. (Complainant did not explain what the
harassing conduct consisted of.) He stated that the alleged coworker harassment usually occurred
when he went to pick up Courtesy and has been witnessed by all employees working at the “Al
machine.”
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Complainant stated his belief that this action was based on his race because he’s Mexican and they
are not; that it was based on his sex because it would be taken more seriously if a female employee
reported harassment; that it was based on his sexual orientation because MDO and SPM are Female
and they treat it as if it were child’s play; that it was based on his age because they think that older
males should act their age; that it was based on his disability because he does not move as fast due
to his knee injury and is singled out because of that; and that it was based on his prior EEO activity
because he has a long history of filing EEO complaints. He reiterated his assertion, again
identifying C3, C4, and C5 as comparators, that his coworkers received more favorable treatment.

SDO asserted that he has no knowledge of Complainant informing management that two
coworkers harassed him, and MDO stated that she is only aware of one complaint of alleged
harassment that occurred when Complainant reported that C7 told him, “You need to go to the
dentist, your breath smells like shit.” She added that C7 then told C1 that it smelled like shit in
there. She explained that an investigation was conducted and C7 was issued discipline.

SPM stated her belief that management was informed about one coworker harassing Complainant;
and that management took action. She asserted that the management official who took action was
either SDO or an Acting Supervisor.

Both MDO and SPM asserted that Complainant’s protected classes were not considered as factors
regarding their handling of this claim; and MDO added that action was taken.

Management asserted that they were unaware of any of Complainant’s coworkers reporting
harassment; C8, Complainant’s coworker stated that, during the period at issue, he did not witness
Complainant being harassed by C7 and C1 while he was picking up Courtesy; and two witnesses
identified by Complainant did not complete their affidavits.

Claim 3:

He stated that the coworkers he alleged harassed him work at the “Al machine,” which is at the
front of the building, so he has to pass it to pick up Courtesy. He stated that Courtesy is not his
bid job; and that the job belongs to C3, so management should have C3 do his job rather than
putting Complainant in a situation where he got harassed. SDO acknowledged that he assigned
Complainant to pick up Courtesy because it is part of Complainant’s job. He stated that he did not
know of two coworkers harassing Complainant, so he is unsure if Complainant had to pass by
those coworkers when picking up Courtesy, adding that Complainant did not report any issue with
passing by two coworkers when picking up Courtesy.

SDO asserted that Complainant told him that he has no problem working with C7, adding that, in
October 2017, C1 was not assigned on operations along the shortest path that Complainant would
have taken to pick up Courtesy. SDO acknowledged that picking up Courtesy is part of C3’s
position, as well as Complainant’s; and that it is within management’s discretion to assign duties
based on the needs of the service.
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MDO asserted that she and SDO assigned Complainant to pick up Courtesy, stating that
Complainant did not make her aware of any coworkers harassing him when he did so; and SPM
asserted that she has no knowledge of the alleged assignment.

Complainant has filed four EEO complaints in the past five years including the two he identified
as his prior protected EEO activity.

One of those identified filings was an informal complaint filed on May 15, 2017, against MDO
and SDO; that case was settled during mediation on June 27, 2017. A second informal complaint
was filed on September 3, 2016, against two management officials including MDO; that case was
settled during mediation on October 25, 2016.

Of the remaining two, one formal complaint was filed on June 10, 2016, against the same two
management officials that included MDO; that case was closed via Final Agency Decision dated
November 23, 2016, and was being appealed. A second formal complaint was filed on December
1, 2015.

SDO, MDO and SPM, the management officials involved in the alleged actions in the instant
complaint stated that they were aware of Complainant’s prior EEO activity.

Complainant indicated that his medical condition, a permanent right knee meniscus tear, limits
him in his personal life; management officials stated they were either unaware of Complainant’s
medical condition or had not received any documentation for any work restrictions that may be
required as a result of that condition.

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 Equal Employment
Opportunity Commission Administrative Judge. When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

CONTENTIONS ON APPEAL

There are no contentions on appeal.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
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record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim, a 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 initially 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. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at
n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, a 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., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, color, sex, sexual orientation, age, national origin, disability, and reprisal/retaliation, we find
that the Agency articulated legitimate, nondiscriminatory reasons for its actions.

Management explained that SDO decided to issue Complainant the LOW due to his unacceptable
conduct and lack of candor after Complainant violated agency policies when he threatened a fellow
employee with a knife and was not truthful with his early statements about the incident.
Complainant did not refute management’s explanations.

In an effort to show pretext, Complainant identified C3, C4, and C5 as comparators who received
more favorable treatment than he did, asserting that management’s actions were based on his
protected classes. He however only identified improper comparators because all of the relevant
aspects of his employment situation are virtually unidentical to those of the other employees who
he alleged were treated more favorably in that C3 and C4 are in the same protected group as
Complainant with respect to race and color; and Complainant did not allege that these individuals
engaged in unacceptable conduct but were not disciplined.

Besides, management stated that they were largely unaware of Complainant’s protected classes,
asserting that those purviews were not considered as factors in their actions; they identified both
Male and Female employees who were disciplined for similar incidents involving harassing
conduct towards other employees, showing that other employees in the same or similar
circumstances received the same treatment as Complainant; and that their actions were not
motivated by discriminatory animus.

With respect to reprisal, the evidence shows that Complainant’s most recent EEO complaint was
settled during mediation on June 27, 2017; and that the first action alleged in the instant EEO
complaint occurred on July 12, 2017.
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Therefore, the circumstances involving management’s actions in the instant complaint may give
rise to an inference that discrimination did occur due to the short time period that elapsed between
Complainant’s prior protected activity and the adverse action of LOW issuance by management
officials who were aware of or involved in Complainant’s prior EEO filings.

However, any inference that may have been created is dispelled by management’s explanations
that Complainant was issued the LOW due to his unacceptable conduct and lack of candor after
he threatened his fellow employee with a knife. Therefore, his reprisal allegation fails.

Complainant alleged in Claims 2 and 3 that he was subjected to harassment and a hostile work
environment, asserting that management should not have assigned him to pick up Courtesy which
was not his job; and that picking up Courtesy required him to pass by C1 and C2, the two coworkers
whom he alleged had been harassing him. We find that, under the standards set forth in Harris
v. Forklift Systems, Inc., Complainant’s allegations in Claims 2 and 3 must fail. To succeed in a
claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class;
(2) they were subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on their statutorily
protected class; (4) the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment 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). Further, the
incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

There is no evidence that C1 and C2 harassed Complainant when he picked up Courtesy, a job
duty which, contrary to Complainant’s contentions, management rightly assigned to him since it
was included in his bid’s description. We also note that management took immediate action to
address C7’s one-time comments regarding the need for Complainant to visit a dentist. We find
that Complainant has not described any severe or pervasive conduct that was taken based on his
membership in any of his protected classes or that in any way altered the terms and conditions of
his employment. Complainant identified C3, C4, and C5 as comparators who were also harassed
by other employees but received more favorable treatment than he did, asserting that
management’s actions were based on his protected classes. However, the record, as indicated,
shows that action was taken to address the incident involving C7. Moreover, Complainant did not
report being harassed by his coworkers; and he provided no evidence that his comparators also did
not report being harassed yet management took action to address their situations. Therefore, we
find that Complainant has failed to demonstrate that any of the alleged management actions were
motivated by discriminatory animus; and that his failure to report harassment to his supervisors
deprived them of the requisite awareness to enable them take remedial steps to address his alleged
situation.

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We therefore find that Complainant’s allegations are not supported by the totality of the evidence
and he has failed to present any plausible explanations that would demonstrate that management’s
reasons for its actions were factually baseless or not its actual motivation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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).
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 10, 2019
Date