Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

May 15, 2013

0120114138 (E.E.O.C. May. 15, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120114138

Agency No. 4G-780-0238-10

DECISION

On September 6, 2011, Complainant filed an appeal from the Agency’s July 29, 2011 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. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Part-Time
Flexible City Carrier at the Agency’s North Austin Station in Austin, Texas. On September
24, 2010, Complainant filed and later amended an EEO complaint alleging that the Agency
harassed him on the bases of race (African-American), disability, and in reprisal for prior
protected EEO activity by constantly issuing him discipline; subjecting him to heightened
scrutiny through observations; denying him auxiliary assistance; accusing him of causing
penalty overtime, threatening him; and not abiding by his medical restrictions.1

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 EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b).

1 The Agency subsumed Complainant’s disability based claim (Agency No. 4G-780-0297-10)
concerning his modified assignment into the McConnell class action.
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In its decision, the Agency provided explanations for management’s conduct and found that
Complainant failed to prove it was unlawfully motivated. This appeal followed with a lengthy
brief arguing, among many other things, that the Agency created a “Hell on Earth” for
Complainant and was solely focused on terminating his employment.

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, i.e. in this case, race, disability or prior
protected activity. Only if complainant establishes both of those elements, does the question of
vicarious liability for supervisory harassment present itself.

Upon review of the record, we note that almost all of the discipline issued to Complainant was
reduced through the grievance process. We find that Complainant, who had attendance
problems and had three accidents within one year, did receive discipline but that none of it was
inconsistent with Agency policy, nor was it so excessive as to require further explanation. We
further find that the heightened scrutiny to which Complainant believed he was subjected was
also not inconsistent with what managers and supervisors do – they observe Carriers while they
case mail and while they deliver their routes. They also make decisions about who will
provide assistance to others and whether overtime is appropriate. The tension between
Carriers and management with regard to delivery times is not specific to this complaint.

Because Complainant did not 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. There is testimony
in the record from Complainant’s co-worker and from the union steward attesting to the fact
that management was especially hard on Complainant. However, there is no evidence linking
management’s conduct to Complainant’s race, disability or his protected activity.
Complainant’s hyperbolic argument on appeal that the Agency wants to rid itself of all disabled
employees and all employees who engage in protected activity is only argument. It is not
evidence. For these reasons, Complainant’s claim of harassment fails. The Agency’s final
order is AFFIRMED.

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:

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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.
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
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with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

May 15, 2013
Date