Jon M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Apr 11, 2019

0120171828 (E.E.O.C. Apr. 11, 2019)

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

Jon M.,1
Complainant,

v.

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

Appeal No. 0120171828

Agency No. 1J-607-0032-16

DECISION

On April 29, 2017, 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 16, 2017, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether the Agency discriminated against, and harassed Complainant, based on his sex and in
reprisal for EEO activity, when he was subjected to derogatory jokes; he was accused of ruining
another employee’s career; he was not permitted to act as a supervisor; and he was not selected for
positions as a supervisor or a Network Specialist.

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.
0120171828

2
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the
Agency’s Chicago Metro Logistics and Distribution Center in Elk Grove Village, Illinois.

On June 12, 2015, Complainant stated that a coworker (CW1) (female) came to his area and took
his fan. Complainant stated that he asked CW1 to return the fan, but she refused. Complainant
stated that CW1 raised her voice and attracted the attention of another Mail Handler (MH1)
(female). Complainant stated that MH1 asked him to go to see the Manager, Distribution
Operations (MDO) (male). Complainant stated that MH1 called him a “fairy,” and said, “Let’s go
Tinkerbell.” Complainant stated that after this incident, a supervisor (S1) (female) said to him,
“Come on Tinkerbell,” in a joking manner; two supervisors, (S2) (female) and (S3) (female),
informed Complainant that they heard about the incident and laughed at him; and another Mail
Handler (MH2) (undisclosed sex) also called him “Tinkerbell” in a joking manner. Report of
Investigation (ROI) at pgs. 11-12, 152-153.

Complainant filed a grievance with the union regarding MH1’s behavior. On September 15, 2015,
the grievance was settled, and management was instructed to refrain from using MH1 as an acting
supervisor to avoid future incidents. ROI at pg. 19. Complainant filed another grievance when
managers utilized MH1 in a supervisory detail from December 5, 2015, through January 8, 2016.
The matter was settled on March 16, 2016, with management again agreeing to refrain from using
MH1 as a supervisor. ROI at pg. 41.

Complainant stated that S1 informed him that she and another unnamed manager did not agree
with the grievance decision, and that it “ruined” MH1’s career. ROI at pg. 159. Complainant also
stated that from June 12, 2015, through January 8, 2016, MDO stopped allowing him to perform
supervisory duties. Complainant stated that MDO had previously allowed him to supervise for
approximately one and one-half to two years. ROI at pg. 173.

On July 7, 2015, Complainant applied for six positions as a Supervisor, Distribution Operations
(Vacancy Nos. NC87826241, NC87826215, NC87826218, NC87826221, NC87826222, and
NC87826223). On November 20, 2015, Complainant applied for another position as a Supervisor,
Distribution Operations (Vacancy No. NC91534523). On June 15, 2016, Complainant applied for
three positions as a Supervisor, Distribution Operations (Vacancy Nos. NC10027160,
NC10026913, and NC10026917). On June 15, 2016, Complainant applied for a position as a
Network Specialist (Vacancy No. NC10026574). Complainant was not selected for any of these
positions. ROI at pg. 189.

On August 15, 2016, Complainant stated that an Acting Supervisor (AS) (male) stated to him,
“What’s up faggot,” “Hey homo,” and “Hey ma’am.” Complainant stated that he asked AS to stop,
but that AS continued to do so. ROI at pg. 395.

0120171828

3
EEO Complaint

On June 6, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against, and subjected him to harassment, on the bases of sex (male/perceived sexual orientation),
and reprisal for protected EEO activity arising under Title VII when:2

1. from June 12, 2015, through January 8, 2016, management violated a Step 3
grievance settlement;

2. from an unspecified date, and continuing, he was subjected to derogatory jokes
from management and coworkers;

3. from an unspecified date and continuing, members of management have accused
him of ruining MH1’s career;

4. from June 12, 2015, through January 8, 2016, he was not permitted to act as a
supervisor;

5. from June 12, 2015, through January 8, 2016, he was not selected for a position as
a Supervisor, Distribution Operations; and

6. on or about June 15, 2016, he was not selected for a position as a Network
Specialist.

On August 12, 2016, the Agency dismissed claim 1 for failure to state a claim as a collateral attack
on an arbitration decision. The Agency informed Complainant that the EEOC does not enforce
grievance settlements, and this claim would more appropriately be raised in the grievance process.
ROI at pgs. 67-72.

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). 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). Therein,
the Agency concluded that Complainant failed to prove that he was subjected to discrimination as
alleged.

2 The Commission defines protected activity as (1) opposing a practice made unlawful by one of
the employment discrimination statutes; or (2) filing a charge, testifying, assisting, or participating
in any manner in an investigation, proceeding, or hearing under the applicable statue. EEOC
Compliance Manual on Retaliation, No. 915.004 at II.A. (Aug. 25, 2016). For the purposes of this
decision, we will consider Complainant’s filing of a grievance as protected activity under Title VII
when he complained that MH1 made statements that were viewed as related to Complainant’s
perceived sexual orientation.
0120171828

4
For claim 4, Complainant alleged that 24 named comparators were treated more favorably because
they were allowed to supervise. However, the Agency found that Complainant had not established
a prima facie case of discrimination based on sex or reprisal for EEO activity, because none of
those named comparators were both outside of his protected categories and treated differently than
Complainant. Regardless, the Agency noted the management officials’ legitimate,
nondiscriminatory reasons for their actions. MDO stated that he was informed that Complainant
refused to supervise because he wanted to supervise every day, and not sporadically as needed.
One of the managers (M1) (male) stated that Complainant approached him about supervising, and
that he initially used Complainant as a supervisor. However, M1 stated that he was unable to use
Complainant after he did not report to work as scheduled, and M1 had to find others to supervise
until Complainant arrived at work. The Agency also noted that the record shows that Complainant
worked as a supervisor from May through December 2015. The Agency then found that
Complainant had not proven pretext for discrimination, and therefore, the Agency did not
discriminate against Complainant based on his sex, or in reprisal for EEO activity, when it did not
allow Complainant to act as a supervisor from June 12, 2015, to January 8, 2016.

With regards to claim 5, the Agency found that Complainant established a prima facie case of
discrimination based on his sex and reprisal for EEO activity for some of the positions because the
selectees were outside of his protected categories. The Agency then found that the management
officials articulated legitimate, nondiscriminatory reasons for their actions.

For the six July 2015 supervisory positions, two of three members of the Review Committee stated
that Complainant scored a zero for two requirements, which resulted in an overall score of zero
because any applicant who scored a zero in one of the nine requirements received a raw score of
zero.3 The November 2015 vacancy announcement was cancelled. For the three 2016 supervisory
vacancies, Complainant was deemed qualified with a score of 72 on his applications, but he was
not selected because he had less experience than the selectees.

For the Network Specialist position, MDO stated that he was the selecting official for this position,
and that Complainant was not qualified for the position. Complainant scored a zero for every
requirement, except one, and received a raw score of zero. The Agency then determined that
Complainant had not shown that the reasons were pretext for discrimination because he made
unsupported assertions that females were “sought after,” and managers blocked his advancement
because of his EEO activity. The Agency concluded that Complainant was not discriminated
against based on his sex, or in reprisal for his EEO activity, when he was not selected for any of
the listed positions.

Regarding Complainant’s harassment claim, the Agency determined that the complained of
conduct was not based on Complainant’s protected classes.

3 The Agency noted that the third member of the Review Committee had passed away before an
affidavit could be obtained.
0120171828

5
The Agency also noted that Complainant did not provide evidence that others perceived his sexual
orientation as anything other than heterosexual.4 Further, the Agency found that the incidents were
not sufficiently severe or pervasive to create a hostile, abusive, or offensive work environment or
unreasonably interfered with Complainant’s work performance.

Complainant filed the instant appeal but did not submit a statement in support of his appeal. The
Agency states that its final decision fully addressed the relevant issues in this appeal, and requests
that the Commission affirm its final decision.

ANALYSIS AND FINDINGS

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 Chap. 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”).

Dismissed Claim

As an initial matter, we affirm the Agency’s dismissal of claim 1. A claim that can be characterized
as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as
the grievance process, the workers’ compensation process, an internal agency investigation, or
state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15,
1994). The Commission has held that an employee cannot use the EEO complaint process to lodge
a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596
(July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for
Complainant to have raised his claim regarding the Agency’s non-compliance with the grievance
settlement is within the negotiated grievance process, and as such, it was properly dismissed.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive such that it results in an alteration
of the conditions of a complainant’s employment. See EEOC Notice No. 915.002, Enforcement
Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of
harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the

4 See further discussion, infra.
0120171828

6
harassment complained of was based on the statutorily protected class; (4) the harassment had the
purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability
to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(Oct. 16, 1998).

In this case, we do not find that the record supports Complainant’s assertion that S1, S2, S3, MH2,
or AS made the alleged statements. All provided affidavits denying that they made the statements
attributed to them, and Complainant has not provided any witness statements, or other evidence,
to show that these statements were made. ROI at pgs. 485, 503, 493, 631, 510. Unfortunately,
Complainant did not request a hearing before an EEOC Administrative Judge, and, as a result we
do not have the benefit of an Administrative Judge’s credibility determinations of the witnesses in
this case. Complainant bears the burden to prove, by a preponderance of the evidence, that the
alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to
meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept.
13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew
his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't
of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish
that his coworker made offensive comments in a “he said, she said” situation where complainant
requested a final decision and an Administrative Judge did not make credibility determinations).

With regards to the comments allegedly made by MH1, we find that the record is inconsistent, and
it is unclear if she called Complainant “fairy” and “Tinkerbell” on June 12, 2015. Complainant
stated that two witnesses, (W1) and (W2), heard MH1 make the statements. ROI at pg. 155.
However, W1 stated that she “never heard those words, I don’t recall.” ROI at pg. 627. W2 did not
complete an affidavit, despite the record showing that it was delivered to her. ROI at pgs. 632-635.

In the September 15, 2015, grievance settlement decision, it is noted that MH1’s “behavior is not
disputed, or denied; rather the behavior is confirmed by the Step 2 Designee.” ROI at pg. 646.
However, the record contains a statement from MH1 noting that she “never referred” to
Complainant as a fairy or Tinkerbell; and that she had not participated in the grievance
investigation. MH1 added that W2 was a union representative, and Complainant’s girlfriend. ROI
at pg. 643. The grievance document shows that W2 was the union steward who conducted the
investigation. ROI at pg. 648-649. While we note that the record is inconclusive, for the purposes
of this decision, we will assume that MH1 made the remarks.

However, we find that this does not rise to the level of unlawful harassment. In assessing whether
the Complainant has set forth an actionable claim of harassment, the conduct at issue must be
viewed in the context of the totality of the circumstances, considering, inter alia, the nature and
frequency of offensive encounters and the span of time over which the encounters occurred. See
29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-
050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No.
05970077 (Mar. 13, 1997).
0120171828

7
Generally, “simple teasing, offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the terms and conditions of employment.” Kozak v.
United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United
States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). In this case, Complainant
was called “fairy” and “Tinkerbell” once, and this isolated incident was not severe or pervasive.
Accordingly, we find that Complainant has not shown that he was subjected to harassment based
on his sex, or in reprisal for his EEO activity.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
sex, and in reprisal for his EEO activity, we find that the management officials articulated
legitimate, nondiscriminatory reasons for their actions.

For claim 4, MDO stated that he was not the manager who did not permit Complainant to
supervise; and that M1, and another manager (M2) (female), were responsible. M1 stated that he
had Complainant act as a supervisor but stopped after Complainant “displayed a lack of
dependability.” ROI at pg. 523. M2 stated she did not arrive at the facility until December 28,
2015, but that she believed that Complainant was asked to supervise, when needed, and was treated
the same as the other employees. ROI at pgs. 515,517.

Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.
Complainant has only made bare assertions, which are insufficient to prove pretext for
discrimination.
0120171828

8
Accordingly, we find that the Agency did not discriminate against Complainant based on his sex,
or in reprisal for protected EEO activity, when it did not allow him to act in a supervisory role.

For claim 5, a Review Board member of the July 2015 applications stated that Complainant failed
to meet the written requirements. ROI at pgs. 555. The November 2015 position was cancelled,
and no one was selected for the position. ROI at pg. 615. With regards to the June 2016 supervisor
vacancies, the selecting official (SO1) (male) stated that he found that Complainant was qualified,
but he selected the other candidates over Complainant because they had more experience.5 For
example, one was an acting supervisor, and served on a process improvement team that led to
improved clearance time on a machine; another had experience acting as a supervisor and as the
Manager, Distribution Operations on weekends; and the third was an acting supervisor and a past
president of the union, which gave him experience in conflict management and dispute resolution.
ROI at pgs. 541, 545, 549.

For the Network Specialist position in claim 6, both members of the Review Board stated that
Complainant scored a zero on all but one requirement and received a raw score of zero. This
vacancy announcement listed eight requirements, including the ability to analyze information,
coordinate schedules, and maintain equipment inventory. It appears that Complainant submitted
the same application as he did for the supervisor positions, and he did not address the specific
requirements for the Network Specialist position. ROI at pgs. 532, 586, 2036, 2083.

We find that Complainant has not shown that the Agency’s reasons are pretext for discrimination.
In a non-selection case, pretext may be found where the complainant’s qualifications are plainly
superior to the qualifications of the selectee. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir.
1981); Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). In this case,
Complainant only stated that he was “one of the best candidates,” but has not described, nor shown,
how his qualifications were plainly superior to any of those selected. ROI at pg. 192. Rather,
Complainant stated that he could not “specifically speak on the credentials of other candidates,”
but felt that he was qualified and his “experience was similar.” ROI at pgs. 261, 287, 295, 303,
313, 321, 328, 338, 345, 354, 372.

Additionally, when reviewing Complainant’s applications, we do not find that his qualifications
were plainly superior to those of the selectees. For example, regarding one of the July 2015
supervisor vacancies, Complainant only provided general statements that his actions resulted in
employees being “more aware,” and more productive. ROI at pgs. 663-334. To compare, the
selectee stated that he created a quarterly newsletter to improve communication, and he increased
the union membership from 77% to 92% of the workforce by giving personal attention to
employees’ concerns. ROI at pgs. 769-770.

5 We note that the June 2016 non-selections were not accepted claims because the dates for claim
5 run from June 12, 2015, through January 8, 2016. However, because these incidents were
investigated by the Agency, and addressed in the final decision, we will also include them in this
decision.
0120171828

9
The Commission has previously found that an Agency has the discretion to choose among
candidates whose qualifications are relatively equal as long as the decision is not premised on an
unlawful factor. Devance-Silas v. U.S. Postal Service, EEOC Appeal No. 0120110338 (March 23,
2011), citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-259;
Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin College, 555 F.2d 1057,
1061 (6th Cir. 1981). Further, we note that in the absence of evidence of unlawful discrimination,
the Commission will not second guess the Agency’s assessment of the candidates’ qualifications.
See Burdine, 450 U.S. at 259. Even assuming that Complainant had credentials that were relatively
equal to those selected, we find that Complainant has not shown any evidence that the Agency
discriminated against him based on his sex, or in reprisal for EEO activity, when he was not
selected for any of the positions.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not proven that the Agency
discriminated against, or harassed him, based on his sex, or in reprisal for EEO activity when he
was subjected to derogatory jokes; he was accused of ruining another employee’s career; he was
not permitted to act as a supervisor; and he was not selected for positions as a supervisor or a
Network Specialist.

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.
0120171828

10
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).
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

April 11, 2019
Date