Chadwick W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Mar 13, 2019

0120171580 (E.E.O.C. Mar. 13, 2019)

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

Chadwick W.,1
Complainant,

v.

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

Appeal No. 0120171580

Agency No. 4B060008016

DECISION

On March 27, 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 7, 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at
the Agency’s Norwalk Connecticut Post Office in Norwalk, Connecticut. Documents in the record
indicate that Complainant experiences complications from a traumatic brain injury, including
migraine headaches. Additionally, Complainant has undergone multiple surgeries on his left knee,
which he stated resulted in difficulty with climbing stairs and prolonged standing or walking.
Complainant also has the conditions of anxiety and post-traumatic stress disorder (PTSD).
Complainant reported that he does not have any work restrictions due to his medical conditions.

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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The record shows that on March 28, 2016, Complainant received a Letter of Warning (LOW) for
failure to follow instructions and failure to perform his assigned duties. The LOW stated that on
March 21, 2016, Complainant returned after 6:00 p.m. and did not submit a Form 3996 or notify
management that he would not make it back on time. The LOW indicated that during a pre-
disciplinary interview (PDI) on May 23, 2016, Complainant failed to provide an acceptable
explanation for his late return.

On May 10, 2016, Complainant’s first-line supervisor (S1) issued a LOW to Complainant with the
stated reasons of failure to follow instructions and failure to properly perform assigned duties. The
LOW explained that on May 5, 2016, Complainant signed for an express mail item, which was to
be delivered by noon. However, Complainant did not deliver the express mail item until 4:56 p.m.
The LOW was rescinded in the grievance process on August 10, 2016.

On or about June 15, 2016, Complainant observed that someone wrote “crybaby” on his case.
Complainant stated that he informed S1, a union official, and one other supervisor (S3), who
Complainant acknowledged conducted an inquiry into the matter but did not provide Complainant
with the results. Complainant testified that between June 18-21, 2016, he discovered pornographic
photographs in his drawer. Complainant stated that he gave the photographs to S1, who took the
pictures and did not discuss the incident further.

On July 1, 2016, Complainant received approval for his Family Medical Leave Act (FMLA)
request to use intermittent leave as needed for scheduled appointments.

Complainant averred that when he arrived at work on August 10, 2016, he observed that someone
had written “eat shit” on his copy of an attendance and performance policy. Complainant
purported that he informed S1, as well as two other supervisors. According to Complainant, when
he informed S1 about the writing on his case, S1 questioned him on his excess road time from the
prior day, August 9, 2016, which Complainant attributed to a rainstorm and a broken scanner.
Complainant stated that when speaking with S1, he informed him that he had to leave for the day
to seek medical treatment because the incident caused a migraine flare-up. Complainant alleged
that S1 told the Postmaster (S2) and upon clocking out, he went to speak with S2 about the incident.
Complainant stated that S2 instructed him to return to his case and Complainant responded that he
had already punched out for the day. Complainant was subsequently charged with 7.69 hours of
leave without pay (LWOP). Medical documentation submitted by Complainant indicates that
Complainant was seen by the VA Connecticut Healthcare System for a migraine flare-up on
August 11, 2016.

On September 19, 2016, and September 21, 2016, Complainant returned to the office 20 minutes
and 10 minutes late, respectively. On September 23, 2016, management officials conducted a PDI
to ascertain why Complainant returned late and did not call the office.

According to Complainant’s statements, on November 29, 2016, Complainant returned to the
office at 5:30 p.m., which S1 found unacceptable. Complainant explained that he was late due to
a heavier volume of mail, heavy rain, and knee problems.
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Complainant alleged that on November 30, 2016, S2 performed a route inspection on
Complainant’s route. Complainant stated that the route inspection should have not applied to him
based on his age and disability.

On July 1, 2016 (and amended several times), Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of race (Caucasian), disability (physical), and
in reprisal for prior protected EEO activity when:

1. On unspecified dates, Complainant was denied overtime opportunities on his non-
scheduled days;

2. On March 31, 2016, Complainant was issued a Letter of Warning dated March 28, 2016;

3. On May 10, 2016, he was issued a Letter of Warning;

4. On or about June 15, 2016, someone wrote “crybaby” on his case;

5. On June 15, 2016, Complainant was given an investigative interview;

6. Between June 18-21, 2016, someone left pornographic photos on his work station and
management did not take appropriate action;

7. On August 10, 2016, when Complainant reported for work, he found a copy of the USPS
attendance policy at his work station with the words “eat shit” written on it;

8. On August 10, 2016, his supervisor questioned him about excess road time on August 9,
2016, and then threatened to charge him AWOL after he informed him that he needed to
leave to get medical assistance;

9. On August 11, 2016, he was charged with AWOL and given leave without pay (LWOP)
for his absence rather than the FMLA-protected sick leave that he requested;

10. On September 23, 2016, he was called into the office for a pre-disciplinary interview during
which his supervisor mentioned his EEO complaint;

11. On October 22, 2016, and November 1, 2016, and other possible dates, he was bypassed
for overtime;

12. On November 30, 2016, he reported to work, and the Postmaster did an office count on
him; and

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13. On November 29, 2016, Complainant was harassed about returning to the office late.2

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 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.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that his claim about the processing of his complaint, claim (5),
was improperly denied. Complainant adds that on February 7, 2017, he found a swastika at his
workstation, which he contends is an example of how he has been subjected to a hostile work
environment.

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”).

2 In his affidavit, Complainant stated that the incident alleged in claim (5) concerned a dispute he
had with the EEO Counselor. In its final decision, the Agency dismissed the claim pursuant to 29
C.F.R. 1614.107(a)(8) for alleging dissatisfaction with the processing of a previously filed
complaint. We concur with the Agency’s dismissal of this claim. The Commission notes that
allegations of dissatisfaction with the agency’s processing of a previously filed complaint or a
pending complaint cannot be the subject of an EEO complaint. See 29 C.F.R. § 1614.107(a)(8);
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
Ch. 5, IV.A.12 and IV.D (Nov. 9, 1999). We remind the Agency that, when a complainant raises
allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency
official responsible for the quality of complaints processing must add a record of the complainant's
concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained
on the underlying complaint. If no action was taken, the file must contain an explanation of the
Agency's reason(s) for not taking any action. See EEO MD-110, Ch. 5, IV.D.2. Having reviewed
the record, it does not appear Complainant raised his concerns with the Agency official, and, as
stated above, we cannot review them here.
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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). Complainant must initially establish a prima facie case by demonstrating that he
or she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination and
reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Regarding Complainant’s claims that he was denied overtime opportunities, claims (1) and (11),
management officials affirmed that overtime decisions are based on the needs of the Agency rather
than the needs of the individual but denied that Complainant was denied opportunities to work
overtime. ROI, at 155-156. Management officials further explained that individuals are chosen
for overtime based on the overtime desired list (OTDL). Id. at 175. S3 averred that whenever
management received authorization for overtime, they started with the low person on the list and
worked their way up. Id. at 209. S3 noted, however, that management called everyone on the
OTDL, including Complainant during the relevant period. Id. at 208. S1 stressed that Complainant
worked overtime during the relevant period and averred that Complainant was offered fewer
opportunities to work overtime on his nonscheduled days because he did not answer the phone
when called. Id. at 156. S2 concurred that on many days when Complainant was called for
overtime, he did not answer his phone or respond. Id. at 176. For example, with respect to the
dates noted in claim (11), S2 stated that he told S3 to call Complainant in to work, but Complainant
did not answer his phone. Id. at 194-195. Nevertheless, the record indicates that Complainant
worked 112.03 hours of overtime while the range of hours of overtime worked by his coworkers
ranged from 0.01 to 149.82 hours. Id. at 278.

As for Complainant’s disciplinary claims, claims (2) and (3), management officials explained that
Complainant received the LOWs for failure to follow instructions. ROI, at 158, 160, 177, 179.
Specifically, S1 affirmed that Complainant received the March 28, 2016 LOW because no one
knew that Complainant had a migraine when he chose to depart for the day. Id. at 158. The LOW
itself indicates that Complainant returned after 6:00 p.m. on the date in question, failed to submit
a Form 3996, and failed to notify management that he was not going to make it back on time. Id.
at 266. As for the May 10, 2016 LOW, management officials asserted that Complainant failed to
deliver express mail on time. Id. at 179, 267. However, the May 10, 2016 LOW was rescinded
though the grievance process on August 10, 2016. Id. at 269.

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Regarding Complainant’s allegations of derogatory language on his case and pornographic
documents, S3 attested that he took a picture so that he could inform S2 about the incident and S2
affirmed that he investigated the matter alleged in claim (4). ROI, at 180, 203. S2 noted that he
was unable to identify the perpetrator, but that he gave a service talk in response to Complainant’s
report. Id. A June 16, 2016 incident statement corroborates S3’s assertion that he investigated the
matter and followed up with service talks about respect for others in the workplace. Id. at 271. As
to claim (6), S1 stated that Complainant did not inform him of the event, so he could not investigate
the matter. ROI, at 162. There is no corroborating evidence that the incident occurred or that
Complainant reported it to management. Regarding claim (7), S1 denied that Complainant
informed him of the incident. ROI, at 162-163. However, S3 stated that he took a picture, as
requested by Complainant, and S1 told Complainant to return to his case. Id. at 204. S2 asserted
that he asked Complainant to come into his office to discuss the issue, but Complainant left and
S2 could not determine who wrote on Complainant’s documents. Id. at 181.

With respect to claims (8) and (9), S1 explained that he questioned Complainant about excess road
time because Complainant had been instructed to complete his work in eight hours. ROI, at 163.
S1 added that Complainant became angry upon being questioned and left. Id. S1 stressed that
Complainant did not mention a medical appointment and S2 told Complainant that he would be
considered AWOL if he left. Id. at 167. S2 acknowledged that he informed Complainant that he
would be charged with AWOL if he did not return to his case but denied threatening Complainant.
Id. at 181-182, 188. S2 stressed that he mentioned AWOL because Complainant left abruptly
without explaining his departure. Id. at 188. S1 stated that Complainant was charged with 7.69
hours of LWOP for the following day, August 11, 2016. Id. at 167. S2 stated that Complainant
was charged with LWOP because Complainant did not request leave under FMLA. Id. at 189.

In terms of claim (10), S2 stated that the PDI was conducted to learn why Complainant worked
beyond 6:00 p.m. ROI, at 191. As for claim (12), S2 asserted that he conducted an office count
to validate Complainant’s efficiency. Id. at 198. S2 stated that while Complainant protested the
office count, stating that he is a disabled veteran, office counts are performed at any time and
employees should always expect supervision. Id. Regarding claim (13), S1 affirmed that
Complainant requested assistance with his parcels so that he would not run late. Id. at 172. S1
stressed that he questioned Complainant because although Complainant received the requested
assistance, Complainant still returned late. Id.

Based on a review of the evidence as a whole, we find that the preponderance of the evidence in
the record does not establish that the Agency’s legitimate, nondiscriminatory reasons are pretext
for discrimination or reprisal. Accordingly, we find that Complainant was not subjected to
discrimination or reprisal as alleged.

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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 his protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

The Commission finds that the alleged incidents were not sufficiently severe or pervasive to
establish a legally hostile work environment. The Commission notes that Title VII is not a civility
code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the
victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). As
discussed above, the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations. Specifically, we find that
the described issues with overtime, disciplinary actions, time/attendance, office counts, and
discussions regarding road time were more likely attributable to managerial discipline and
workplace disputes. Even assuming that the alleged conduct was sufficiently severe or pervasive
to create a hostile work environment, the Commission finds that Complainant failed to show that
the Agency’s actions were based on discriminatory or retaliatory animus.

Finally, the Commission notes that Complainant raised a new claim of discrimination for the first
time on appeal. The Commission has held that it is not appropriate for a complainant to raise new
claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No.
01A40449 (Apr. 22, 2004). Complainant is advised that if he wishes to pursue, through the EEO
process, these additional claims raised for the first time on appeal, he must initiate contact with an
EEO Counselor within 15 days after he receives this decision. The Commission advises the
Agency that if Complainant seeks EEO counseling regarding these new claims within the above
15-day period, the date Complainant filed the appeal statement in which he raised these claims
with the Agency shall be deemed to be the date of the initial EEO contact, unless he previously
contacted a counselor regarding these matters, in which case the earlier date would serve as the
EEO Counselor contact date.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s finding that the Agency did not
discriminate against Complainant on any basis or subject him to a hostile work environment.

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. 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.
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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

March 13, 2019
Date