Jesse H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019001009 (E.E.O.C. Sep. 4, 2019)

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

Jesse H.,1
Complainant,

v.

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

Appeal No. 2019001009

Agency No. 4B-006-0042-17

DECISION

On September 22, 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
August 15, 2018 final decision concerning an 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.

BACKGROUND

During the period at issue, Complainant worked as a Sales and Services Associate at the Agency’s
65th Infantry Station in San Juan, Puerto Rico.

On August 22, 2017, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the bases of sex (male), disability (PTSD, back fractures, neck injury,
diabetes, high blood pressure), age (55), and in reprisal for prior EEO activity when:

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.
2 2019001009

1. on April 13, 2017, Complainant was issued a Letter of Warning (LOW);

2. on October 4, 2017, he was assigned work duties outdoors and subjected to
verbal confrontations on the workroom floor by members of management; and

3. on October 23, 2017, in order to remain at work, he was required to provide
additional medical documentation.

After an 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), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

This is an appeal from a final decision 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
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”).

We analyzed Complainant’s desperate treatment discrimination claims in accordance with the U.S.
Supreme Court’s three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). First, Complainant had to establish a prima facie case by demonstrating he was
subjected to adverse employment action under circumstances that would support his inferences of
discrimination. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978).2 The second burden
was on the Agency to articulate legitimate and nondiscriminatory reasons for its actions at issue.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) If the Agency articulated a legitimate,
nondiscriminatory reason for its actions, then our inquiry proceeds to the third step of whether
Complainant has shown by a preponderance of evidence that the Agency’s reasons were pretexts
to mask discriminatory motivations. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133
(2000); see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).

2 For purposes of analysis we presumed without finding that Complainant was an individual with
a disability.

3 2019001009

As an initial matter, we note Complainant declined to request a hearing before an AJ. Had he
done so, then his attorney may have had the opportunity to present his witnesses and to cross-
examine Agency witnesses, and Complainant’s case could have benefited from an AJ’s credibility
determinations. Instead, Complainant’s attorney declined to request a hearing, waived AJ review,
and authorized the Agency to issue the final decision based on its report of investigation.

Letter of Warning

According to Complainant, the Agency’s issuance of the April 13, 2017 letter of warning, was
motivated by animus toward his age, disabled veteran status and prior EEO activity. The Agency,
however, stated that over a period of approximately three years, Complainant accumulated over
three hundred hours of unscheduled absences on 52 days. Most of his absences were recorded as
unscheduled sick leave and many excused as Wounded Warriors Leave. Nevertheless, the
Agency’s time and attendance monitoring system flagged Complainant in a manner that compelled
his supervisor to issue the letter of waring. The Agency articulated a legitimate, nondiscriminatory
reason for its action. Complainant lacked evidence to persuade us that the female comparator
employee, who was also a disabled veteran, had a similar record of unscheduled absences.
Furthermore, the Agency presented testimony that another male employee had also received a
letter of warning under circumstances similar to Complainant.

Assignment of Outdoor Work Duties and Verbal Confrontation

Complainant accused the Agency of subjecting him to conditions that aggravated his disabilities.
He also stated that three different supervisors confronted him and caused him extreme distress by
overburdening him with their instructions. The record revealed that in the aftermath of Hurricane
Katrina, Complainant and his co-workers had returned to duty and continued the Agency’s mission
of delivering the mail. At that time, the 65th Infantry Station required remediation for mold and
repairs to its air conditioning. As a result, the facility’s customer service employees, including
Complainant, were temporarily assigned outdoors to attend to Agency customers. Complainant
averred working outdoors had agitated his disabilities (PTSD and diabetes in particular). The
supervisors denied knowledge of the triggers of Complainant’s symptoms and did not recall the
confrontation Complainant described. Evidence of record was insufficient to corroborate
Complainant’s accusation of discriminatory treatment on October 4, 2017.

Required to Provide Medical Documentation

Complainant has stated that he had to be hospitalized as a result of the incident of October 4, 2017.
He also stated he was unable to return to work until October 23, 2017. Complainant stated that
upon his return, managers required him to prove his absence was justified because of medical
treatment. Complainant accused management of stating he could not return to work without
verification from his medical provider. The only supervisor who was involved and available to
provide a sworn statement testified that Complainant’s employment was never threatened or even
in jeopardy because Complainant complied by providing the necessary documentation the day
after he returned. At best, Complainant’s account and that of his supervisor were in equipoise.
4 2019001009

Therefore, Complainant did not prove discriminatory mistreatment through the Agency
demanding medical evidence nor did he show that his supervisors threatened to terminate his
employment. Complainant v. Dep’t of Health and Human Servs., EEOC Appeal No. 0120122134
(Sep. 24, 2014).

Harassment / Hostile Work Environment

We also analyzed Complainant’s claims in the context of harassment. It is unlawful to subject an
employee to a hostile work environment because of his protected status. See McKinney v. Dole,
765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). To be unlawful, the harassment must also be
sufficiently severe or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug.
14, 1998). We gave due consideration to Complainant’s final claim of exclusion, scrutiny and
poor communications as alleging a pattern of harassment. Here, Complainant failed to persuade
us that he was subjected to a clearly hostile working environment or that Agency management
acted upon retaliatory motives.

Complainant failed to demonstrate that his supervisors mistreated him severely or harassed him
because of unlawful animus towards his EEO-protected statuses. Instead, a fair reading of the
record revealed common workplace disputes between Complainant and his supervisors. In the
present case, we fail to find irregularity in management’s decision to issue a Complainant warning
letter for taking frequent unscheduled sick leave. After result of hurricane damage to the Agency
facility, it was not unexpected that the improvised outdoor workplace became stressful and
frustrating for both Agency supervisors and employees. This Commission does not consider such
regular interactions sufficiently severe or pervasive. See Lynch v. U.S. Postal Serv., EEOC Appeal
No. 01981027 (July 16, 1999).

Denial Official EEO Time in Reprisal

Finally, we note that the Agency did not address the issue of Complainant’s request for official
time. However, in an affidavit, Complainant claimed the Agency had retaliated against him by
denying him sufficient official EEO time to prepare his affidavit. We therefore will address this
matter separately, because Complainant had raised this issue during the processing of this
complaint.

EEOC Regulation 29 C.F. R. 1614.605(b) provides that agencies shall provide complainant a
reasonable amount of official time, if otherwise on duty, to prepare a complaint and to respond to
requests for information. An allegation of wrongful denial of official time states a separate claim
that the Agency violated the regulation. The Commission has broad authority to remedy a violation
of 29 C.F.R. § 1614.605 without finding discriminatory motive. Bryant v. Dep’t of Treasury,
EEOC Appeal No. 0120065274 (Feb. 25, 2009) (citing Edwards v. U.S. Postal Serv., EEOC
Request No. 05960179 (Dec. 23, 1996)). At the same time, EEOC considers it reasonable for
agencies to expect their employees to spend most of their time doing the work for which they are
employed. EEOC Management Directive 110, (EEO MD-110), Ch. 6 § VII.C. (Aug. 15, 2015).
(Aug. 15, 2015). The appropriate inquiry is whether the Agency granted a reasonable official time
for Complainant to work on this EEO complaint.
5 2019001009

Reasonable official EEO time depends on the nature and complexity of the complaint and that
preparation time is generally measured in hours while time for hearings may be measured in days.
Murry v. Gen. Servs. Admin., EEOC Appeal No. 0120093069 (July 26, 2012). We have upheld
an AJ's finding that three hours is a reasonable amount of official EEO time for a Complainant to
prepare an affidavit that was similar in scope and addressed five discrimination claims. Brandon
v. U.S. Postal Serv., EEOC Appeal No. 0120080803 (July 24, 2009). Consequently, we find the
Agency was reasonable in its granting Complainant three hours to prepare his affidavit for this
EEO complaint.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence did not
support a finding that discrimination occurred as Complainant had alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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.
6 2019001009

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 (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 4, 2019
Date