Rufus G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Nov 4, 2016

0120140631 (E.E.O.C. Nov. 4, 2016)

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

Rufus G.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120140631

Agency No. 4G-780-0130-12

DECISION

Complainant filed an appeal from the Agency’s October 26, 2013, 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. The Commission deems the appeal timely and accepts it for de novo review.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Full-Time City Carrier at the Post Office in Harlingen, Texas. On
June 4, 2012, Complainant filed an EEO complaint in which he alleged that various
supervisors and managers at the Harlingen Post Office subjected him to disparate treatment and
discriminatory harassment because of his sex (male) and in reprisal for protected EEO activity
between March 2012 and April 2013. He identified as the responsible officials an Acting
Supervisor (204B), two Customer Services Supervisors (CSS1 and CSS2), and the Postmaster.

Complainant initially alleged that on March 15, 2012, the 204B summoned him to a pre-
disciplinary interview (PDI) and that during the meeting, the 204B made inappropriate racial
and sexual comments, raised his voice and told him to “get out.” Investigative Report (IR)
118, 124. The 204B responded that he was not conducting a PDI, and that he had told
Complainant to put his pivots in his case and not leave them on his supervisor’s desk. He

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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denied making the comments in question, pointing out that he rarely had conversations with
Complainant. IR 253, 255.

Complainant next alleged that while conducting a street observation of his performance, the
204B ordered him not to wear a shoulder seatbelt on a residential street or in a residential
neighborhood. IR 136. The 204B denied ordering Complainant not to wear his seatbelt and
noted that he had never spoken to Complainant one-on-one without a third-party being present.
IR 255, 259, 314.

Third, Complainant alleged that the 204B harassed him on May 30, 2012, and other
unspecified dates by conducting street observations of his delivery route. IR 142-43. The
204B responded that he conducted street observations on everyone and that carriers were aware
that they were subject to supervision at all times. IR 260.

Fourth, Complainant alleged that the 204B continued to harass him by conducting investigative
interviews on May 24 and June 14, 2012. IR 146, 157. Regarding the observation on May
24, the 204B averred that Complainant’s request for an inordinate amount of overtime that day
had prompted the interview. As to the June 14 interview, the 204B stated that he had received
reports that Complainant and a number of other carriers had not been wearing their uniforms,
and that because Complainant had not obeyed his orders regarding the wearing of non-
regulation hats, he had to have an official discussion with Complainant. IR 261.

Fifth, Complainant alleged that on November 19, 2012, the Postmaster and CSS1 had given
him conflicting instructions pursuant to a street observation, and that as of November 23rd, the
204B had not discussed the results of the street observation with him. IR 161-62, 164. The
Postmaster admitted that he had given Complainant instructions regarding mail collection but
that he left the day-to-day supervision of Complainant and the other Carriers to CSS1. As to
the reason for the street observation itself, both the Postmaster and CSS1 averred that the
Postmaster had directed CSS1 to carry out the street observation because Complainant had
requested a high amount of overtime, and that this was standard practice at the Harlingen Post
Office. IR 272, 284. They also averred that they did not discuss the results of the street
observation because the data recorder that CSS1 was using had malfunctioned. IR 273, 284.

Sixth, Complainant alleged that on March 6, 2013, he was subjected to an investigative
interview by CSS2 which resulted in his being issued a seven-day suspension on March 7,
2013. IR 181, 185-86, 200. The Postmaster and CSS2 both averred that they had ordered
Complainant not to take any breaks beyond those that were authorized, and that Complainant
had been observed during a street observation the week before taking 40 minutes of
unauthorized breaks. The suspension was later grieved and reduced to an official discussion.
IR 277, 289, 291-93, 315-18.

Finally, Complainant alleged that on April 5, 2013, the Postmaster and CSS2 again instructed
him not to take comfort breaks or rest stops on his route and had deducted 25 minutes from his
route inspection count. IR 192, 194. CSS2 averred that taking excessive breaks had been a
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chronic issue with Complainant. IR 294. The Postmaster denied that any time had been
deducted from Complainant’s route. IR 278. A grievance settlement dated June 26, 2013,
states: “Examiner’s comments noted but no time deductions taken from carrier for use of route
adjustment process during this time period.” IR 281.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission 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). The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

ANALYSIS AND FINDINGS

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”).

In order to prevail on his claims of disparate treatment and discriminatory harassment,
Complainant would have to prove, by a preponderance of the evidence, that the Postmaster,
the 204B, CSS1, and/or CSS2 were motivated by unlawful considerations of his gender and
EEO activity in connection with various incidents described in the complaint. See Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Harris v. Forklift Systems,
Inc., 510 U.S. 17, 22 (1993). If Complainant cannot establish the existence of discriminatory
intent on the part of any of these officials, no further inquiry would be necessary as to whether
the incidents complained rose to the level of harassment or constitute separate acts of
discrimination under disparate treatment theory. Nicki D. v. Department of Veterans Affairs,
EEOC Appeal No. 0120133247 (October 15, 2015).

In circumstantial-evidence cases such as this, Complainant can establish the requisite motive by
presenting evidence tending to show that the reasons articulated by the Postmaster, the 204B,
CSS1, and CSS2 for their actions were pretext, i.e., not the real reason but rather a cover for
discrimination or reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993).
Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal
No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008).
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When asked by the investigator why he believed that his gender and EEO activity were
motivating factors in the various actions taken by the 204B, the Postmaster, CSS1, and CSS2
Complainant admitted that sex was not a factor but maintained that he had named these
officials in complaints that he had previously filed, and that they continued to retaliate against
him for bringing the current complaint. IR 122, 125, 138, 146, 148, 163, 166, 184, 187, 196.
Apart from his own affidavit, however, Complainant has not submitted any sworn statements
from other witnesses or documents that contradict the explanations provided by the 204B, the
Postmaster, CSS1 or CSS2, or which call their veracity into question. We therefore agree with
the Agency that Complainant failed to establish the existence of an unlawful motive in
connection with any of the incidents he identified in his complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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.

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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

November 4, 2016
Date