Clinton R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120172429 (E.E.O.C. Nov. 20, 2018)

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

Clinton R.,1
Complainant,

v.

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

Appeal No. 0120172429

Hearing No. 551-2015-00215X

Agency No. 1E-985-0001-15

DECISION

On June 30, 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
May 25, 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, 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. Our review is de novo. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the
Agency’s work facility in Kent, Washington.

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.

0120172429

2
On November 19, 2014, and in a subsequent amendment dated May 29, 2015, Complainant filed
an EEO complaint wherein he claimed that the Agency discriminated against him on the basis of
reprisal2 for his prior protected EEO activity when:

1. On September 22-23, 2014, Complainant was charged with being Absent Without
Leave (AWOL);

2. On an unspecified date, management falsified an investigative interview;

3. On October 16, 2014, management charged Complainant with being AWOL;

4. On or about March 2, 2015, Complainant’s Supervisor harassed him when she yelled
at him, followed him and subjected him to heightened scrutiny;

5. On an unspecified date and thereafter, management changed Complainant’s work
hours;

6. On or about April 14, 2015, Complainant received a notice of seven-day suspension;
and

7. On or about May 28, 2015, Complainant received a notice of fourteen-day suspension
for poor attendance.

At the conclusion of the 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.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on May 17, 2017.

The AJ found that no discrimination occurred. With respect to claim (1), the AJ observed that
Complainant’s mother passed away and in the aftermath, Complainant could not locate any
supervisors to inform them of his absence, so he told a coworker who said he would relay the
information to management. The Agency leave policy required notification of a supervisor of
absences in advance in order to have an approved leave of absence. In the alternative, employees
could call into the Agency system to report an absence. The AJ stated that Complainant did not
adhere to the policies and, therefore, lacked approved leave. Complainant was placed in AWOL
status for two days. Complainant submitted a leave slip when he returned to work and filed a
grievance which resulted in the AWOL status being removed. The AJ reasoned that supervisors
followed established policy in a situation where Complainant had to take leave unexpectedly, and
no evidence points to a retaliatory motive.

2 Complainant also claimed discrimination on the bases of his disability, race, color, national
origin, sex and age. However, he subsequently withdrew these bases.
0120172429

3
In terms of claim (2), the Agency sent a controversion letter to the U.S. Department of Labor’s
Office of Workers’ Compensation Program (OWCP) in response to Complainant’s workers’
compensation claim arising from a November 2014 workplace injury. Complainant believed that
the controversion letter indicated that investigative interviews were conducted, but Complainant
disputes that any occurred. According to the AJ, one Supervisor (S2) was the only management
official involved and she was unaware of Complainant’s prior EEO activity. Thus, the AJ found
that Complainant failed to set forth a prima facie case of reprisal as to claim (2).

With regard to the AWOL at issue in claim (3), Complainant did not dispute that he failed to follow
Agency policy concerning his absence, but stated that he provided a doctor’s note after he returned
from his absence. Complainant asserted that he submitted a leave request to a coworker instead
of a supervisor and assumed the coworker would give the form to management. The AJ stated that
the AWOL was changed to leave without pay pursuant to a grievance resolution. The AJ found
that Complainant failed to establish a prima facie case of reprisal given that S2 had no knowledge
of Complainant’s prior EEO activity.

With respect to claim (4), the AJ stated that Complainant did not provide details to support his
claim that his Supervisor (S1) yelled at him, followed him and subjected him to heightened
scrutiny. The AJ noted that Complainant did not dispute that the Agency investigated this incident
and found S1 did not harass Complainant or treat him inappropriately.

As for claim (5), the AJ observed that Complainant conceded that his work hours were proposed
to be changed temporarily to accommodate his work restrictions after his on-the-job injury, but
that he rejected the changes. The AJ stated that Complainant did not dispute that his hours were
never changed.

With regard to the seven-day suspension at issue in claim (6) and the 14-day suspension in claim
(7), the AJ found that Complainant established a prima facie case of reprisal. The seven-day
suspension reflected Complainant being charged with performing an unsafe act on November 11,
2014. Specifically, the Notice of Suspension stated that Complainant failed to clear a path, was
not focused on the task at hand, and his forehead hit the dock lamp. Complainant did not dispute
that his injury occurred and that he failed to report it immediately as Agency policy required. The
14-day suspension was based on unacceptable attendance.

With respect to the reasons for its actions, the AJ noted that the Agency stated as to the two
AWOLs and the fourteen-day suspension that it had an interest in ensuring that its employees
appear for work; minimizing, reducing and avoiding absenteeism; and for disciplining its
employees who fail to adhere to its attendance policies. As for the claim concerning the OWCP
controversion letter, the Agency asserted there was no misrepresentation in the letter and that it
had an interest in contesting what it believed were not legitimate workplace injury claims. In terms
of the seven-day suspension, the AJ noted that the Agency stated it had an interest in promoting
workplace safety, avoiding unnecessary accidents, and ensuring all employees comply with all
safety policies.
0120172429

4
As to the change in Complainant’s work hours, the Agency maintained that it was a proposal based
on the Agency’s legal obligation to accommodate its employees’ work restrictions. The Agency
stated with respect to claim (4) that no actions were taken against Complainant. The Agency noted
that any allegation of harassment or otherwise inappropriate conduct by S1 was already
investigated and found to be without merit.

The AJ found that Complainant did not present evidence to raise a genuine issue of material fact
concerning the Agency’s articulated reasons for its actions. Complainant failed to show that the
Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant had
not been subjected to reprisal as alleged.

As for Complainant’s harassment claim, the AJ found that the alleged incidents were insufficiently
severe or pervasive to establish a hostile work environment. Further, the AJ determined that
Complainant did not establish that the conduct at issue was based on his prior EEO activity.
Accordingly, the AJ found that Complainant had not been subjected to a hostile work environment
as alleged. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that it subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends as to claim (1) that he notified his supervisors through a
coworker of his leave, which he states is permitted in emergency situations. Complainant argues
that the Agency’s assertions that he did not notify it and refused to sign a leave request require
credibility determinations. As for claim (3), Complainant maintains that S1 was also aware of his
prior EEO activity and that she entered the AWOL charge. Complainant challenges the AJ’s
finding that he provided no details as to matters involved in claim (4). According to Complainant,
S1 ordered him to return to his station, watched him as he worked, and ordered the tugger and the
forklift operators to pile empty stacks in front of him. Complainant contends that S1 subsequently
followed him to the bathroom and when he asked why, she yelled at him. With regard to his seven-
day suspension, Complainant claims that S2 reported that there was no observation of him
engaging in an unsafe act. Complainant points out that S2 learned on March 17, 2015, that he filed
his formal complaint and less than one month later, S2 issued him a suspension for the alleged
unsafe act, four months after the incident allegedly occurred. Complainant argues that S2 relied
on an on-site investigation conducted by a clerk, but there is no record of such investigation.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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
rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo.
0120172429

5
See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action
shall be based on a de novo review…”); see also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5,
2015)(providing that an administrative judge’s determination to issue a decision without a hearing,
and the decision itself, will both be reviewed de novo).

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. 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 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that: (1) he
engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3)
subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between
his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency 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. Reeves v. Sanderson Plumbing
Prods., 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).

We find that there are no material facts in genuine dispute and that the AJ properly found that
summary judgment was appropriate. Here, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. The Agency asserted as to claim (1) that Complainant
did not have an approved leave of absence. Complainant had not called into the system and was
absent for two days. S1 asserted that Complainant did not submit a PS Form 3971 upon return to
work and refused to sign the form when it was given to him. In terms of claim (2), the Agency
denied that an investigative interview was falsified as part of its controversion of Complainant’s
OWCP claim. With regard to claim (3), Complainant’s Supervisor that day (S3) stated that
Complainant did not talk to him to tell him he was feeling ill and he was notified only by a written
request from another employee. S3 asserted that the policy required that a PS Form 3971 be
handed to the immediate supervisor and not given to another person to submit it to management.
With respect to claim (4), S1 denied that she followed, pointed, stared, or yelled at Complainant;
rather, she stated that she only paged Complainant to return to his work area. According to S1,
Complainant engaged in disruptive and provocative behavior by yelling at her, accusing her of
harassment and saying he would make sure she lost her job.

0120172429

6
With regard to claim (5), the Agency stated that it proposed an alteration of Complainant’s work
hours in order to accommodate his work restrictions after an injury, and that the hours were not
changed because Complainant rejected the proposal. In terms of claim (6), the Agency stated the
Notice of Suspension was due to Complainant committing an unsafe act. The Agency noted that
it has an interest in promoting workplace safety, avoiding unnecessary accidents and ensuring all
employees comply with all safety policies. With respect to claim (7), S2 stated that the Notice of
Suspension was issued based on Complainant’s failure to be regular in attendance due to excessive
call-ins. According to S2, she had previously made Complainant aware of his attendance
deficiencies and Complainant had been issued prior disciplinary action for unacceptable
attendance.

Complainant attempts to establish pretext as to claim (1) by arguing that he notified his supervisors
through a coworker of his leave, which he states is permitted in emergency situations. However,
we find that this argument is not persuasive as Complainant has failed to show that the Agency did
not have a policy requiring notification of a supervisor of absences in advance in order to have an
approved leave of absence. The AJ noted that in the alternative, employees could call into the
Agency’s automated system to report an absence. The AJ stated that Complainant did not adhere
to the policies and therefore lacked approved leave. We find that Complainant has failed to
establish that his AWOL was attributable to retaliatory motivation.

With regard to claim (2), Complainant claims that management did not respond to his
representative’s request to have a meeting to discuss the falsified investigative interview. We do
not discern persuasive evidence that the Agency falsified an investigative interview. Complainant
appears to resent that the Agency controverted his OWCP claim; however, we find no evidence
that reprisal occurred in this matter. In terms of claim (3), Complainant claims that he left work
early because he was not feeling well and he gave a PS Form 3971 to a coworker to give to S3.
This argument, however, is not sufficient to negate the Agency’s policy that the employee taking
the leave should submit the PS Form 3971 to his supervisor. We find that Complainant has failed
to establish that the Agency’s reason for issuing Complainant an AWOL was pretext intended to
mask retaliatory motivation.

With regard to claim (4), Complainant argued he was not given any reason for being yelled at,
followed and subjected to heightened scrutiny by S1 on his first day back at work after his injury.
Upon review of the record, we find insufficient support for Complainant’s claim as the record
reflects that S1 did little more than page Complainant to return to his work area. In terms of claim
(5), Complainant has not shown that the mere proposal of different work hours was anything other
than an attempt to accommodate his work restrictions.

With respect to the seven-day suspension at issue in claim (6), Complainant argues there is no
evidence that he did not constantly watch for obstructions, and claims that he was struck when the
light swung back at him. Complainant notes that S2 learned on March 17, 2015, that he filed his
formal complaint and less than one month later, S2 issued him a suspension for the alleged unsafe
act, four months after the incident allegedly occurred. Complainant argues that S2 relied on an
on-site investigation conducted by a clerk, but there is no record of such investigation.
0120172429

7
We observe that the Notice of Suspension states that the dock light is a permanent fixture and it is
not spring loaded so it did not hit Complainant’s head as he claimed, but rather Complainant’s
head hit the dock lamp. We acknowledge the close temporal proximity between S2 learning of
the filing of this formal complaint and the issuance of the suspension, but we find that the evidence
indicates Complainant was inattentive and committed an unsafe act. We find that Complainant
has not established that the Agency’s explanation for this suspension was pretext intended to mask
retaliatory motivation.

As for the 14-day suspension involved in claim (7), Complainant contends that management did
not inform him that his attendance was unacceptable prior to issuance of the suspension.
Moreover, Complainant maintains that he provided medical documentation for the dates in
question. However, S2 asserted that Complainant had been previously made aware of his
attendance deficiencies and had been issue prior disciplinary action for unacceptable attendance.
According to S2, Complainant had excessive call-ins that were not supported by acceptable
medical evidence. We find that Complainant has not established that the Agency’s explanation
for this suspension was pretext intended to hide retaliatory motivation.

Accordingly, we find that Complainant has not established that he was subjected to reprisal as to
these claims.

Hostile Work Environment

To establish this claim, 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.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working
environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes
with an employee’s work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

Upon review of Complainant’s arguments regarding the alleged incidents, we find that they are
not sufficient to refute the Agency’s explanation for what occurred. Complainant has not shown
that that the alleged incidents were sufficiently severe or pervasive to establish a hostile work
environment nor has he demonstrated that the Agency’s actions in these matters were attributable
to his prior EEO activity. We find that Complainant has not demonstrated that he was subjected
to a hostile work environment based on reprisal.

0120172429

8

CONCLUSION

The Agency’s determination that no discrimination occurred 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. 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.
0120172429

9
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 20, 2018
Date