Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Sep 2, 2015

01-2012-3400-0500 (E.E.O.C. Sep. 2, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120123400

Hearing No. 430-2012-00062X

Agency No. 4H-300-0161-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
August 6, 2012 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 City Carrier at the
Agency’s Post Office in Norcross, Georgia. On March 11, 2011, Complainant was involved
in a vehicle accident with a co-worker (CW1). Complainant initially called the police, but
learned that the accident had already been reported. On March 14, 2011, the police arrived to
investigate the incident. Complainant claimed that his supervisor (S1) was irate that
Complainant had called the police and accused Complainant of starting trouble. Complainant
alleged that S1 said to him “Did you call the police…you low down, sneaky motherfucker.”
After the police left, Complainant and S1 began arguing and yelling at each other after S1
instructed Complainant not to conduct his personal business on the clock. Complainant
claimed that S1 ordered him into his office, yelled at him, and cussed him out for getting CW1
in trouble. In addition, Complainant alleged that S1 used racial and sexual slurs. Complainant
claimed that S1 has constantly cursed at him and called him names, and that he was always
intimidated by S1’s demeanor. A few days later, Complainant claimed that S1 threatened his
life by making a gesture with his hand across his neck.

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Additionally, Complainant alleged that S1 had previously made comments about wanting to
have sex with Complainant’s girlfriend/fiancé, who also worked at the Norcross Post Office.
Complainant claimed that the conduct started with a comment (“Let me have [Complainant’s
girlfriend] once.”) and then became continuous despite his protests. Complainant alleged that
S1 often approached him and made remarks such as “Decided to let me hit her yet?” In
addition, Complainant claimed that on one occasion, he was called into the Postmaster's office
after he was off the clock, and S1 showed him a cell phone video of S1 receiving oral sex from
a waitress. Complainant claimed that an Acting Supervisor (AS) was standing behind S1
during the incident.

In October 2010, Complainant was absent because of an injury. S1 began repeatedly calling
Complainant to ask when he would be returning to work. According to Complainant, S1
warned him that he might lose his route if he was absent much longer and offered to hold the
route open for $200. Complainant showed S1 his wallet, and S1 agreed to take $100.
Complainant claimed that S1 then signed his Family Medical Leave Act (FMLA) paperwork.

Complainant claimed that on March 28, 2011, he requested 1 hour and 30 minutes of overtime
by placing a PS Form 3996 on S1’s desk. Complainant claimed that he had not worked on the
prior weekend, and all of his residential marriage mail was in his hamper from the week
before. Complainant assumed that he would be granted overtime, since S1 took no action on
the overtime request. Complainant claimed that as he was loading his vehicle, S1 approached
him and screamed for Complainant to “take off one hour” and give it to a co-worker.
Complainant alleged that S1 further told him that he would “have [his] ass” if Complainant
went one click over eight hours. Complainant responded by saying that it was impossible to
complete his mail delivery in eight hours and that everyone works overtime on Monday.
Complainant claimed that S1 told him “You're gonna do it my way, my way or the highway.”

Complainant claimed that he submitted a request to have his name removed from the “12-hour
list" and he asked to be on “Work Assignment only” on March 14, 2011, because he felt
threatened by S1. Complainant alleged that S1 threw his paperwork in the garbage, saying, “If
you do that to me, I will make your life fucking miserable.” On March 21, 2011, he re-
submitted the request.

On June 28, 2011, Complainant filed a formal complaint alleging that the Agency subjected
him to a hostile work environment and sexual harassment on the bases of race (Caucasian), sex
(male), and color (White) as evidenced by multiple incidents including, inter alia, S1
threatened his life and forced him off the clock when he called the police regarding an accident
in the employee parking lot; S1 cursed at him and called him demeaning names in front of co-
workers; S1 taunted him by telling him that he wanted to have sex with his fiancé and/or his
sister; S1 called him into the office to show him a video involving oral sex; S1 bribed him into
paying him $100 to save Complainant's route and to fill out FMLA paperwork; S1 threatened
him with termination for going over 8 hours to finish his route; S1 threatened him for
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removing his name off the overtime desired list; and S1 took overtime Complainant was
entitled to and gave it to another employee.1

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). Complainant timely
requested a hearing but subsequently withdrew request. Consequently, the Agency issued a
FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that Complainant failed to offer corroborating evidence
that many of the alleged incidents occurred. For example, the Agency found that the record
showed that S1 forced Complainant off the clock, but there was no evidence that S1 made any
threats against Complainant. Further, the Agency determined that there was corroborating
evidence that S1 yelled at Complainant and called him names; however, there was no evidence
that S1 used slurs or comments that referenced Complainant’s race, color, or sex. The Agency
noted that Complainant provided multiple accounts of this incident, but only once mentioned
that S1 used slurs. The Agency found similar discrepancies in Complainant’s accounts of
several other claims. Complainant initially claimed in his formal complaint that S1 ordered
him back in eight hours or he would “have [his] ass,” but later claimed in his affidavit that S1
said that he would “fire [his] skinny white ass.” The Agency determined that based on these
discrepancies and lack of corroborating evidence, the record did not support Complainant’s
claim that S1 used slurs involving race, color, or sex.

In addition, the Agency found that the record showed that Complainant and S1 had a history of
swearing matches. According to Complainant’s union representative, Complainant would
often curse at S1, and S1 would often curse back at Complainant. Further, the record revealed
that S1 used coarse language with everyone. As a result, the Agency found that S1’s cursing
and name-calling was not motivated by discriminatory animus.

Regarding Complainant’s claim that S1 asked to have sexual relations with Complainant’s
girlfriend/fiancé, S1 denied making those comments. Although witnesses stated that
Complainant told them about the incidents, no witnesses personally observed the alleged
conduct. Likewise, both S1 and AS denied that the cell phone video incident occurred.
Complainant presented no corroborating evidence substantiating the allegation.

As to the alleged bribe, S1 denied bribing Complainant to hold his route open and to sign
Complainant’s FMLA paperwork. The Agency noted that Complainant did not produce the
FMLA document allegedly signed by S1. Further, the Health and Resource Management

1 The Agency dismissed reprisal as a basis of discrimination based on Complainant’s
acknowledgment that he had not engaged in any protected EEO activity. Complainant did not
challenge the dismissal of this basis on appeal; therefore, the Commission will not address it in
this decision.
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Manager confirmed that there was no FMLA paperwork in Complainant’s file with S1’s
signature and that FMLA forms were not usually given to the supervisor for signature.

Finally, as to Complainant’s claims regarding overtime, the Agency determined that
Complainant and S1 were involved in an escalating conflict which culminated on March 21,
2011, when Complainant removed his name from the 12-hour overtime list. S1 denied
threatening to make Complainant’s life miserable for taking his name off the overtime-desired
lists. The Agency found and Complainant acknowledged that S1 likely decided to punish him
for removing his name from the overtime list. Nonetheless, S1 denied threatening
Complainant with termination if he went over eight hours, and denied that he took overtime
from Complainant and gave it to a co-worker. The Agency noted that the record showed that
Complainant did in fact work overtime on the day in question.

The Agency concluded that Complainant failed to show that any of the alleged incidents were
based on discriminatory animus. Even assuming that Complainant had been subjected to a
discriminatory hostile work environment, the Agency found that there was no basis for
imputing liability to management. Complainant acknowledged that he did not complain to
management about the alleged harassment until March 18, 2011. Management initiated a
prompt investigation when Complainant finally brought forward his allegations, and S1 was
instructed to refrain from speaking to Complainant about non-business matters and to be
professional. As a result, the Agency found that Complainant’s hostile work environment
claim failed and that Complainant failed to show that he had been subjected to discrimination
as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that he has shown that he was subjected to sexual harassment
by S1. Complainant argues that the conduct at issue was severe and pervasive, frequent in
nature, and reasonably interfered with his work performance. Complainant claims that
witnesses support his allegations that S1 harassed him daily, but acknowledges that several of
the alleged incidents cannot be corroborated. Nonetheless, Complainant argues that S1 has
been untruthful on numerous occasions in his affidavit. In addition, Complainant claims that
he was subjected to harassment based on his race and color. Finally, Complainant contends
that management failed to take appropriate action to resolve his claims of sexual harassment.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
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 (in this case, race, color, and sex). Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.
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Here, Complainant alleged that based on his protected classes, S1 continuously subjected him
to a hostile work environment as evidenced by multiple incidents. In the instant case, the
Commission agrees with the Agency that Complainant has not established, by a preponderance
of the evidence, that the incidents alleged actually occurred. The record contains conflicting
evidence, even from Complainant, as to S1’s alleged conduct. While it is is clear that
Complainant and S1 had numerous inappropriate and unpleasant verbal altercations, the
Commission's laws are not a general civility code. Rather, they forbid “only behavior so
objectively offensive as to alter the conditions of the victim's employment.” Oncale v.
Sundowner Offshore Services, Inc.

, 523 U.S. 75, 81 (1998). Under the circumstances of this
case, we are not persuaded that Complainant was a victim or that his employment was altered
by S1’s conduct, nor can we conclude that unlawful animus motivated S1’s conduct.

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 (M0610)

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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 Complainants 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 2, 2015
Date