Calvin D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 23, 20160120150156 (E.E.O.C. Sep. 23, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Calvin D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120150156 Agency No. 1B-072-0018-14 DECISION The Commission accepts Complainant’s appeal from the September 17, 2014 final Agency decision (FAD) 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’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator at the Agency’s Northern New Jersey Metro Processing and Distribution Center in Teterboro, New Jersey. On December 19, 2013, Complainant was at the Logistics and Distribution Center in Kearny, New Jersey picking up Express Mail. The Networks Specialist instructed him to hang his keys on the hook. Complainant claimed that this was not the policy, closed the door, and left with the mail. The Network Specialist later called Complainant’s facility and complained. On December 27, 2013, Complainant’s supervisor (S1) held a pre- disciplinary interview with Complainant regarding his failure to hang his keys in the designated area. Complainant had no reasonable explanation for his actions; therefore, S1 issued Complainant a Letter of Warning for failure to follow instructions on January 2, 2013. 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. 0120150156 2 On March 11, 2014, Complainant claimed that a supervisor (S2) asked him why his keys were not on the tag board. Complainant responded that it was Agency policy to hang the keys in the yellow box next to the bay doors. Complainant claimed that management watched him at various times in March 2014, and asked him questions about where he had placed his keys. On March 28, 2014, the Transportation Networks Manager (M1) told Complainant that he needed to place his keys on the hook and the tag on the board even if he was on his lunch break. Complainant maintained that the keys should always be near the driver who was responsible for the keys and the truck, and that was why the keys were to be placed in the yellow box next to the bay door. On April 4, 2014, M1 held a pre-disciplinary interview with Complainant about his refusal to follow Agency policy regarding the proper placement of keys. On April 8, 2014, management issued Complainant a Seven-Day Suspension for failure to follow instructions. On April 3, 2014 (and amended several times), Complainant filed a formal complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African-American) and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, on January 2, 2014, he was issued a Letter of Warning for Failure to Follow Instructions; throughout March and April 2014, management continually harassed and singled him out regarding the proper placement of his truck keys while he was at the facility; and on April 4, 2014, he was given a Pre-Disciplinary Interview, and subsequently issued a Seven-Day Suspension on April 8, 2014. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. Next, the Agency concluded that management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S1 stated that he issued the Letter of Warning after he learned from the Logistics and Distribution Center Networks Specialist that Complainant had refused to place his keys in the designated spot while his truck was at the platform at that facility despite instructions from the Network Specialist. S1 noted that Complainant had previously been informed of the Standard Operating Procedure. As a result, S1 issued the Letter of Warning. Management attempted numerous times in March and April 2014, to correct Complainant’s continued refusal to follow routine work instructions and policies regarding the keys. Complainant continued to refuse to hang his keys in the designated area. On April 4, 2014, M1 held a pre-disciplinary interview with Complainant and Complainant told him that it was not Agency policy and not everyone was doing it. Complainant had previously been counseled 0120150156 3 and attended a Service Talk instructing him on the proper placement of his keys. As a result, management issued Complainant a Seven-Day Suspension for failure to follow instructions. The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency improperly issued him discipline. Further, Complainant challenges the Agency’s reasons for issuing him discipline and claims that he was singled out. Additionally, Complainant alleges that management failed to show that there was an official policy regarding his issue. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, to prove his harassment 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Complainant asserted that based on his protected classes, management subjected him to a hostile work environment based on several incidents where Agency officials took actions that seemed adverse or disruptive to him. The Commission concludes that the conduct alleged was insufficiently severe or pervasive to establish a hostile work environment. 0120150156 4 Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency's actions. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, S1 affirmed that he issued the Letter of Warning after Complainant ignored the Logistics and Distribution Center Networks Specialist’s instructions to place his truck keys on the hook on the wall next to the bay door. ROI, at 175. S1 maintained that Complainant had been informed of this standard procedure previously, and Complainant could not reasonably explain his actions during the pre- disciplinary interview. ROI, at 175, 272. As a result, S1 issued the Letter of Warning. M1 explained that management continually instructed Complainant on the proper placement of his truck keys while at the facility in March and April 2014. ROI, at 186. M1 noted that Complainant attended a Service Talk in July 2013 on this issue, and the record shows that signs instructing employees were posted at the facility. ROI, at 186, 259-62. Complainant continued to ignore management’s instructions on the proper placement of his truck keys, and M1 held a pre-disciplinary interview with Complainant on April 4, 2014. Id. at 277. Complainant could not provide an acceptable explanation for his actions. As a result, management issued Complainant a Seven-Day Suspension for failure to follow instructions. Id. at 187, 277. Finally, to the extent that Complainant claims that he was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence showing that the Agency's explanation was a pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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: 0120150156 5 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 0120150156 6 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 23, 2016 Date Copy with citationCopy as parenthetical citation