0120152880
03-16-2017
Kieth L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kieth L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120152880
Agency No. 4F-940-0081-14
DECISION
On September 2, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 10, 2015, 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.
ISSUE PRESENTED
The issue presented herein is whether Complainant established discrimination by preponderant evidence based on race, religion, and retaliation.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier Assistant at the Agency's Mills Valley Post Office in California. On December 15, 2014, he filed an EEO complaint alleging discrimination based on race (African-American), religion (Christian), and reprisal when: (1) on September 9, 2014, he was yelled at and told to shut up by his first-level supervisor (S1) and management did not take action when he informed them of the harassment; (2) on unspecified dates, he was not allowed to take lunch or breaks before street duty; (3) on unspecified dates, he was not allowed restroom breaks; and (4) on unspecified dates, he was denied religious accommodation when he was scheduled to work every Sunday. The Agency accepted the complaint for investigation.
With respect to issue (1), Complainant alleged that on September 9, 2014, S1 stated to him, "Shut up. I am [the] Supervisor." He also maintained that S1 screamed to him, "I hate you" in the presence of the Acting Postmaster and several carriers. Both S1 and the Acting Postmaster denied the accusations. Regarding issues (2) and (3), Complainant alleged that he was not allowed to take lunch and breaks before street duty, and that he was denied the opportunity to take restroom breaks. S1 and the Acting Postmaster both testified that Complainant was allowed to take lunch, breaks, and restroom breaks. S1 stated that this was explained to Complainant in his orientation training when he first began working in the Mill Valley Post Office. S1 further noted, however, that if Complainant worked fewer than six hours on a particular day, he was not allowed a lunch period per Agency policy. Finally, with respect to issue (4), Complainant stated that he informed management of his need for a religious accommodation, i.e., not to work on Sundays. The record indicated, however, that both S1 and the Acting Postmaster denied that Complainant informed them of such a need.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge or an immediate decision from the Agency based on the ROI. 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). In the decision, the Agency determined that Complainant did not establish discrimination as alleged.2 Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he never received a copy of the ROI or the opportunity to request a hearing. He further contends that the Agency did not include in the evidentiary file a copy of a false police report filed by S1. Finally, Complainant contends that the Agency did not contact the Union or any of his former co-workers. He states that he has more documents to supplement the file but lacks the money to do so. The Agency did not submit any 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 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
The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (Aug. 5, 2015). In this case, Complainant does not contest the Agency's specific findings of no discrimination regarding issues (1) - (4); consequently, we will not address these matters in our decision. We will address the specific concerns that he raised on appeal.
Contentions on Appeal
Despite Complainant's claim to the contrary, he has provided no persuasive argument to explain why the ROI, which was mailed to his home of record, was not received by him. Consequently, we find that evidence in the record indicates that Complainant was provided a copy of the ROI and afforded his right to a hearing. See Agency's May 28, 2015, Transmittal of Investigative File, ROI at 1-3. Further, based upon a thorough review of the ROI, the Commission is satisfied that the Agency developed an impartial, appropriate factual record upon which to make findings on the claims raised.
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 (M0416)
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 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. The requests 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 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
__3/16/17________________
Date
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 Though the Agency conducted a constructive discharge analysis to ensure a comprehensive analysis of Complainant's claim, the Commission notes that that issue was not alleged in Complainant's formal EEO complaint as a matter alleged to be discriminatory. Therefore, the issue of constructive discharge is not addressed in this decision.
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