Bryant F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Nov 9, 2018

0120172141 (E.E.O.C. Nov. 9, 2018)

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

Bryant F.,1
Complainant,

v.

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

Appeal No. 0120172141

Hearing No. 443-2016-00016X

Agency No. 4E-570-0056-14

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 26, 2017 final
order 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. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Mail Processing Clerk at the Agency’s Grand
Forks Post Office in Grand Forks, North Dakota. Believing that he was subjected to
discrimination based on his sex, age, disability, and in reprisal for prior protected EEO activity,
Complainant filed a formal EEO complaint.

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.
0120172141

2
His hostile work environment complaint was comprised of the following incidents:

1. On September 11, 2014, management instructed Complainant to work
under unsafe conditions.

2. On September 25, 2014, management requested Complainant to clock in
late and publicly ridiculed him.

3. On October 26, 2014, management instructed Complainant to perform
duties that exceeded his physical restrictions pursuant to a 2007 medical
report.

4. On January 30, 2015, and ongoing, management instructed Complainant
to perform duties that exceeded his physical restrictions.

5. On or about April 24, 2015, and ongoing, management assigned him to
work in an area where the blowing fans aggravated his eye condition.

6. On June 4, 2015, Complainant was subjected to an investigative interview,
where it was implied that he was harassing a co-worker, and he was
subsequently issued a Letter of Warning (LOW) on June 15, 2015.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
However, the AJ assigned to the case granted the Agency’s January 4, 2017 motion for a
decision without a hearing, over Complainant’s objections.

In an April 18, 2017 decision, the AJ found no discrimination. The AJ concluded that
Complainant failed to establish a prima facie case of discrimination based on age, sex, and
reprisal and that there was no factual basis to connect the Agency’s actions with Complainant’s
protected bases. Regarding reasonable accommodation, the AJ found no evidence that
Complainant was required to work outside of his restrictions after providing the Agency with his
updated medical restrictions. As for Complainant’s hostile work environment claim, the AJ
reasoned that the alleged events were not sufficiently severe or pervasive.

On April 26, 2017, the Agency issued a final order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.2

Complainant filed the instant appeal. He did not provide any brief or contentions on appeal.

2 We presume for purposes of analysis only, and without so finding, that Complainant is an
individual with a disability.
0120172141

3
ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if
it has the potential to affect the outcome of the case.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. Based on a
review of the instant record, including Complainant’s opposition to the Agency’s motion for
summary judgment, we concur with the AJ that Complainant has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we conclude that the AJ properly issued a decision here by summary judgment in
favor of the Agency.

Disparate Treatment

To prevail in a disparate treatment claim such as this, 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 generally 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). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination.
0120172141

4
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14,
1995).

Complainant has either failed to show that the alleged events occurred as alleged or the Agency
has provided a legitimate reason for its actions. In allegation (1), it is unclear what precisely the
“unsafe conditions” are that Complainant alludes to. Regarding allegation (3), Complainant
attested that his job requires “periodic changes between feeder and sweeper . . .to meet safety
standards,” but Supervisor had him primarily sweep and do feeder work for a co-worker who
could not bend or stoop. The Agency, however, denies Complainant was ever instructed to work
under unsafe conditions. In allegation (4), Complainant alleges that he was told to exceed his
physical restrictions. However, in his affidavit, Complainant describes his medical conditions as
simply “dry eye” and lower back problems which limit his lifting to less than fifty pounds. There
is no evidence these permanent restrictions were violated or even part of his job. In allegation
(5), the Agency explained that the fans were used to keep the work area warm for all the
employees. Complainant was provided with goggles to protect his eyes from drying. With
respect to allegation (2), Supervisor attested that Complainant clocked-in early. Consequently, he
was told to punch in on time. When Complainant went to do so, his card did not initially work.
When it did work, the time was late. However, Complainant was not disciplined for the tardy
punch-in but was simply instructed not to clock-in early. Supervisor denies ridiculing
Complainant. Finally, the Agency explained that Complainant was issued a LOW (allegation (6))
after it was determined that he fabricated a story that one co-worker had harassed another.

Following the Agency’s proffered legitimate reasons, the burden returns to Complainant to show
the Agency’s reasons were pretext to mask unlawful discrimination. Complainant has not
provided any evidence of pretext.

Moreover, he has not established any nexus between his protected bases and the Agency’s
actions. When asked why he believes his sex was a factor, Complainant states that in 2009 his
Supervisor “came on to him”, in that she came toward him in attempt to embrace him with
“dilated pupils”. The Agency’s actions were purportedly motivated by discriminatory animus
for his age, because he is “a bit feeble and susceptible to injury and of an age to retire.”
Complainant believed that his Supervisor retaliated against him due to his union participation in
2009. As noted by the Agency, there is no evidence that the events in the instant complaint,
occurring in 2014 and 2015, were motivated by discriminatory animus for the raised bases.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d
1355, 1358 (11th Cir. 1982).
0120172141

5
Whether the harassment is sufficiently severe to trigger a violation of Title VII [or the
Rehabilitation Act] must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is physically threatening or
humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an
employee’s work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).

In other words, to prove his hostile work environment claim, Complainant must establish that he
was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis – in this case, his sex,
age, disability or retaliatory animus. Only if Complainant establishes both of those elements –
hostility and motive – will the question of Agency liability present itself. Here, as already
discussed early in this decision, there is no evidence that Complainant’s sex, age, disability or
prior protected activity played any role in the disputed events.

CONCLUSION

The Agency’s final order implementing the AJ’s decision without a hearing, finding no
discrimination, is AFFIRMED.

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.
0120172141

6
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

November 9, 2018
Date