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

Equal Employment Opportunity Commission

Aug 22, 2014

0120123048 (E.E.O.C. Aug. 22, 2014)

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. 0120123048

Hearing No. 460-2011-00115X

Agency No. 4G-770-0026-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s June 21, 2012 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. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s North Shepherd Station in Houston, Texas. On September 24, 2010, Complainant’s
supervisor (S1) instructed Complainant to deviate from his regular route and to deliver an
express mail package no later than 11:30 a.m. Complainant failed to follow the instructions
and did not deliver the package until 4:36 p.m., almost five hours past the guaranteed delivery
time. On September 28, 2010, S1 conducted an investigative interview with Complainant, and
Complainant claimed to have no knowledge of the express mail package. On October 18,
2010, S1 issued Complainant a Letter of Warning for unsatisfactory performance.

On December 3, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of sex
(male) and in reprisal for prior protected EEO activity when:

1. On October 18, 2010, he was issued a Letter of Warning; and
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2. On an ongoing basis, management has questioned him about box mail; wants
him to deliver mail on unauthorized overtime; disapproved his time to do nixie
mail; and paid him improperly or not at all.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the
case granted summary judgment in favor of the Agency and issued a decision on May 29,
2012.

In the decision, the AJ determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment and that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, management issued Complainant the
Letter of Warning after he failed to follow instructions and did not deviate from his route to
timely deliver an express mail package, as instructed by management. Additionally,
management questioned Complainant about his performance because of multiple complaints
from customers about non-delivery of mail. When another carrier delivered Complainant's
route on his off-days, she did not receive similar complaints. Finally, Complainant did not
receive overtime hours because he could not substantiate the need for overtime without
sufficient excess mail volume. The AJ concluded that Complainant failed to establish that
management’s reasons for its actions were pretextual. As a result, the AJ found that
Complainant had not been subjected to discrimination, reprisal, or a hostile work environment
as alleged. The Agency subsequently issued a final order fully implementing the AJ’s
decision. The instant appeal followed.

On appeal, Complainant contends that there should be no negative information in his personnel
file and that management has greatly defamed his character, cheated him out of overtime, and
caused him emotional stress. Accordingly, Complainant requests that the Commission reverse
the final order.
CONTENTIONS ON APPEAL

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.
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Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv.
(citing
, EEOC Appeal No. 01972699 (Aug. 14,
1998) McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). 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. ; Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.”
, 510 U.S. 17, 21 (1993)
Harris . , 510 U.S. at 22 (1993)

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on his protected classes,
he was continuously subjected to a hostile work environment. Complainant has cited several
incidents where Agency management took actions that seemed adverse or disruptive to him
including, inter alia, being issued a Letter of Warning; being questioned about his work;
disapproving overtime; and improper pay. Construing the evidence in the light most favorable
to Complainant, the Commission agrees with the AJ that Complainant has not shown he was
subjected to a discriminatory or retaliatory hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that any of the alleged incidents were based on
discriminatory or retaliatory animus. For example, S1 affirmed that he issued Complainant the
Letter of Warning for unsatisfactory work performance and failure to follow instructions after
Complainant failed to deliver an express mail package by the guaranteed delivery time. ROI,
at 108. Regarding overtime, S1 stated he denied Complainant’s requests for overtime because
of low mail volume. Id. at 111. S1 added that Complainant was not required to deliver mail
on overtime; rather, he instructed Complainant to deliver his route and be back off the clock in
eight hours. Id. With respect to questioning his work, an acting supervisor (AS) stated that
she questioned Complainant in reference to apartment mail because the Area Manager (AM)
had received several complaints from customers on his route about non-delivery of mail. Id. at
134. Finally, as to the improper pay claim, AM stated that there was an error with
Complainant’s leave and pay; however, his pay was corrected on or about November 22,
2010. Id

. at 152. Complainant failed to present evidence rebutting the Agency's legitimate,
nondiscriminatory reasons for its actions. As a result, the Commission finds no basis to
disturb the AJ's summary judgment decision finding that Complainant was not subjected to
discrimination, reprisal, or a hostile work environment as alleged.
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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 order, because the Administrative Judge’s issuance of summary judgment
was appropriate and a preponderance of the record evidence 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.
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
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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
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

Date
August 22, 2014