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

Equal Employment Opportunity Commission

Dec 19, 2018

0120172080 (E.E.O.C. Dec. 19, 2018)

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

Damon Q.,1
Complainant,

v.

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

Appeal No. 0120172080

Hearing No. 520-2016-00055X

Agency No. 4B-110-0012-15

DECISION

On May 25, 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
April 19, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), 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. 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 Supervisor, Customer
Services, EAS-17, at the Agency’s Flushing-Whitestone Station in Flushing, New York.

On September 19, 2014, the Postmaster of the Flushing-Whitestone facility issued a new dress
code policy for Executive and Administrative Service (EAS) and 204B Customer Service
employees.

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 policy required males to wear khaki, gabardine or cotton pants, neatly pressed; cotton long-
sleeved button-down shirts, pressed with tie; polo shirts on Fridays or knit shirts with a collar;
sweaters; and leather shoes and belt. In the notification to employees, the Postmaster explained
that the policy was the result of employees wearing attire that stretched the boundaries of casual
dress for business.

On September 30, 2014, Complainant arrived at the Flushing-Whitestone facility dressed in jeans,
and management officials instructed him to report the following day in the correct attire.
Subsequently, Complainant emailed the District Manager, highlighting instances in which other
employees wore jeans without a collared shirt and tie. Complainant noted that he felt that the Area
Manager had harassed him for months about his dress and added that he found the dress code
policy harassing, sexist, and subjective. Complainant expressed concern that his manager expected
him to comply with the dress code by the following day.

Complainant returned to work on October 1, 2014, dressed in jeans and a collared polo shirt rather
than the requisite shirt and tie. Management officials sent Complainant home and Complainant
returned on the following day in dress code-compliant attire.

In early November 2014, the Acting Station Manager (S2) reported multiple concerns regarding
her interactions with Complainant, including frequent visits to her office; inappropriate touching;
verbal harassment; and generally aggressive behavior that culminated in her fearing Complainant.
As such, the Area Manager (S1) scheduled a meeting with Complainant and a National Association
of Postal Services (NAPS) representative. Prior to the meeting, S1 sent a 204B employee (E1)
and Complainant’s NAPS representative to report to the Flushing-Whitestone facility to ensure
that Complainant reported to the Main Office for an investigative interview without incident.
Upon receiving the instruction to report to the Main Office, Complainant questioned the purpose
of the meeting and called the Area Manager for clarification. While speaking with the Area
Manager, E1 instructed Complainant to leave. The interaction escalated to a point where both
Complainant and E1 accused the other of aggressive behavior. Following the incident,
Complainant reported to the Main Office for the investigation and S1 instructed him to go home.
Complainant returned to the Flushing-Whitestone facility on the next day.

Shortly thereafter, Complainant contacted management officials requesting to file an incident
report for the alleged incident that occurred between Complainant and E1. Management scheduled
a meeting with Complainant for November 25, 2014 and a subsequent investigation report dated
December 2, 2014 revealed that the evidence failed to substantiate threatening or intimidating
behavior on the part of Complainant or E1.

On December 4, 2014, Complainant claimed he experienced an on-the-job injury when his left
knee twisted and buckled while he was walking to answer the phone. Complainant filed a workers’
compensation claim with the Office of Workers’ Compensation Programs (OWCP). Management
officials submitted a Challenge Letter on the following day, noting there was no evidence of slip,
trip, or fall hazards.
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The Challenge Letter indicated that Complainant had been seen limping when he reported to work
and management believed Complainant submitted his claim in retaliation for actions Complainant
had previously taken against management without success. On January 22, 2015, OWCP denied
Complainant’s claim.

On January 31, 2015, S2 issued an Absence Letter to Complainant in which she referenced
Complainant’s terminated OWCP claim. Complainant was instructed to report for duty at the
Whitestone Post Office, but the letter granted Complainant seven days to provide evidence
substantiating his need for continued absence. Complainant remained out of work through
February 23, 2015.

In a letter dated March 10, 2015, S1 requested clarification of Complainant’s medical
documentation. Specifically, the letter indicated that from August 2012 through December 4,
2014, Complainant worked on a limited schedule on Tuesdays, Wednesdays, and Thursdays at the
Flushing-Whitestone facility. However, when Complainant requested to return to work in
February 2015, he provided medical documentation with restrictions of no standing, lifting,
kneeling, or lifting over 10 pounds. S1 noted that because Complainant remained out of work two
months after the restrictions were provided, management was uncertain whether the three-day
workweek limitation remained a current restriction. The letter further indicated that Complainant’s
medical documentation did not indicate the duration of Complainant’s restrictions. Complainant
later provided clarification, and he returned to work under the prior restrictions.

On February 28, 2015 (and amended on March 24, 2015), Complainant filed an EEO complaint
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of race (White), national origin (American), sex (male), religion
(Jewish), color (White), disability (Physical and Mental), age (53), and in reprisal for prior
protected EEO activity when:

1. On October 1, 2014, he was sent home for failure to be in compliance with the dress
code;

2. On November 12, 2014, he was harassed, bullied, and threatened by E1;

3. On November 12, 2014, he was sent home;

4. On November 23, 2014, the Acting Area Manager threatened to look into an issue
involving an Acting Manager;

5. On February 8, 2015, he received a letter from his manager instructing him to report
to duty outside of his medical restrictions;

6. On March 31, 2015, and ongoing, he was not allowed to work within his original
medical restrictions; and

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7. On April 2, 2015, he was scheduled for a District Reasonable Accommodation
Committee (DRAC) meeting.

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 the AJ assigned to the matter dismissed Complainant’s hearing request as Complainant
indicated he was unable to proceed.2 The AJ remanded the complaint to the Agency, and the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In its FAD, the Agency determined that Complainant established a prima facie case of
discrimination and reprisal, but failed rebut the Agency’s legitimate, nondiscriminatory reasons
for its actions.

As to Complainant’s denial of reasonable accommodation claim, the Agency assumed, without
deciding, that Complainant was a qualified individual with a disability. The Agency found that
Complainant refused to attend and participate in DRAC meetings; thus, Complainant, failed to
engage in the interactive process. Moreover, the Agency attempted to provide a reasonable
accommodation by referring Complainant to the DRAC, which precluded Complainant from
establishing that the Agency failed to make a needed reasonable accommodation.

Finally, with respect to Complainant’s hostile work environment claim, the Agency found that the
alleged incidents were insufficiently severe or pervasive to establish a hostile work environment.
Further, the Agency concluded that Complainant failed to demonstrate that the conduct at issue
was based on his protected classes. As a result, the Agency found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged.

The instant appeal followed. Complainant requested an extension to file a statement in support of
his appeal, but failed to submit one.

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 Complainant did not challenge the AJ’s dismissal of his hearing request on appeal, and the
Commission can discern no abuse of discretion.
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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 claims, 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.

In the instant case, 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). 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.

The record reflects that the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations. With respect to claim (1),
the Postmaster stated that he wrote the dress code policy, which was similar to one used at the
District level in Operation Support, and Human Resources and the Law Department each reviewed
the policy. ROI, at 302. The dress code was disseminated to all EAS employees, but management
officials affirmed that Complainant arrived at work on September 30, 2014, dressed in jeans. Id.
at 257-258, 302. S1 explained that the Station Manager informed Complainant that he was not
dressed within the dress code and instructed Complainant to be in compliance on the following
day. Id. at 258. While Complainant contended that he complied with the dress code the next day,
management officials stated that Complainant arrived in jeans and a collared polo shirt. Id. at 162-
163, 257, 289-291. S1 made the decision to send Complainant home. Id. Subsequently,
Complainant reported to work in compliance with the dress code and he never received discipline
related to the dress code. Id. at 303.

As to claim (2), S1 stressed that E1 was sent to the Whitestone facility to assist S2 in letting
Complainant know that he needed to report to the Main Office to meet with S1. ROI, at 259.
There were concerns that Complainant would disobey S2. Id. at 105.
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E1 averred that Complainant became aggressive and used profanity toward him when he asked
Complainant to leave. Id. at 105-106, 362. Similarly, Complainant reported that E1 became
aggressive with him when he informed him that he did not have to adhere to his orders. A witness,
Complainant’s NAPS representative, reported that he heard someone say, “you are a 204B. I do
not have to listen to you,” which he attributed to Complainant. Id. at 109, 395. S1 stated that he
investigated the incident, but found no actions related to the Agency’s zero tolerance policy. S1
added that he sent his report to the Postal Inspectors, who chose not to follow with an investigation
of their own. Id. at 112-113, 259-260. S1 noted that although it was clear that there was dialogue
exchanged between the parties, the exchange did not violate Agency policy. Id. at 113.

With respect to claim (3), management officials explained that there was uncertainty as to whether
Complainant could return to the Whitestone facility not only due to his interaction with E1, but
also because S2 expressed that she was afraid of Complainant. ROI, at 261-262. According to the
record, S2 had alleged that Complainant verbally harassed her and interacted with her
inappropriately to the point where she requested another supervisor be present when interacting
with Complainant. Id. at 114, 117. S1 stressed that Complainant was paid for the day in question,
returned to work on the following day, and did not receive subsequent discipline. Id. at 261-262.

As to the events connected to claim (4), S1 denied threatening Complainant and stated that he
shook hands with Complainant following their November 23, 2014 meeting. ROI, at 264, 266.
While the record indicates that the request for Complainant to report to the Main Office on
November 12, 2014 involved an issue with S2, the record does not reflect subsequent discipline or
ongoing concerns regarding the incident. Id. at 259-260. S1 affirmed that while he might have
discussed the incident with Complainant on November 23, 2014, he did not recall raising his voice
with Complainant and would have only mentioned the issue with S2 to illustrate that Complainant
was making the same allegations about E1 that had been brought against Complainant. Id. at 264.

Regarding claim (5), a review of the record fails to support a finding that the Agency acted with
discriminatory animus. S2 explained that upon receipt of an OWCP claim denial, the Agency
issues a three-day notice informing employees that they must report to duty. ROI, at 347. S2
issued the notice, which granted Complainant an additional 14 days to provide medical
documentation in support of any further absence. Id. S2 stated that Complainant responded stating
that he needed to return to work, but could not perform his duties as a supervisor. Id. S1 affirmed
that he referred Complainant to the DRAC because his restrictions became more limited. Id. at
275. The purpose of the DRAC was to determine Complainant’s restrictions and how he could be
accommodated. Id.

As to the DRAC cancellations, the record indicates that Complainant requested cancellation of the
April 2, 2015 meeting. ROI, at 199, 203. Specifically, Complainant indicated that he would not
attend because of his experience at DRAC meetings and reported that his representative would not
be available until after April 8, 2015. Id. Although Complainant missed multiple DRAC meetings,
documents reveal that upon submission of medical documentation and clarification stating that
Complainant should return to the restrictions prior to this December 2014 injury, management
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officials allowed Complainant to work with the reasonable accommodation that was provided in
2012. Id. at 518.

After reviewing the evidence in its entirety, we find that Complainant has not shown that he was
subjected to a discriminatory or retaliatory hostile work environment. To the extent that
Complainant claims he was subjected to disparate treatment, the Commission finds that, as
discussed above, Complainant has not proffered any evidence from which a reasonable fact finder
could conclude that that Agency’s explanation for its actions was pretext for discrimination or
reprisal.

Denial of Reasonable Accommodation

To the extent that Complainant is alleging that he was denied reasonable accommodation in claim
(6), the Commission notes that an Agency is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual with a disability unless
the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. To
establish a denial of reasonable accommodation, Complainant must show that: (1) he is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual
with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a
reasonable accommodation. The Commission will assume without deciding (for the purposes of
this decision) that Complainant is an individual with a disability.

Despite Complainant’s claim, the Commission finds that Agency officials engaged in the
interactive process and attempted to ascertain what accommodations Complainant needed.
Agency officials explained that following Complainant’s December 2014 injury, Complainant
indicated that he had revised restrictions and wanted to return to work. ROI, at 275. Therefore,
management officials requested additional medical documentation, and Complainant was referred
to the DRAC. Id. at 137, 239-241. Complainant acknowledged that officials referred him to the
DRAC, but he chose not to attend due to concerns that he would be humiliated, harassed, retaliated
against, intimidated, abused, or discriminated against. Id. at 199. Despite Complainant’s refusal
to attend a DRAC meeting, management subsequently reviewed Complainant’s medical
documentation and clarification and allowed him to return to work under his original
accommodation in July 2015.

Complainant has presented no evidence that the Agency was unwilling to reasonably
accommodate him or otherwise denied his reasonable accommodation. In fact, the record indicates
that Complainant ultimately returned to work under his original reasonable accommodation on
July 21, 2015. ROI, at 518. Accordingly, the Commission finds that the Agency did not deny
Complainant reasonable accommodation in violation of the Rehabilitation Act.

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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 final decision because the preponderance
of the evidence does not establish that discrimination occurred.

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

December 19, 2018
Date