Darren M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

0120181986 (E.E.O.C. Sep. 4, 2019)

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

Darren M.,1
Complainant,

v.

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

Appeal No. 0120181986

Agency No. 4C-080-0083-17

DECISION

Complainant timely 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 final decision
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of 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.

ISSUES PRESENTED

The issues presented are: 1) whether Complainant established that the Agency's proffered
explanation for its actions was pretext to mask discrimination based on his age; and 2) whether
Complainant established that he was subjected to a hostile work environment, as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the
Agency’s Post Office in Toms River, New Jersey. Report of Investigation (ROI), at 93.
According to Complainant, after he returned to Toms River from being a supervisor at the
Neptune Post Office, the Postmaster (age 53) gave a safety talk and announced that the Neptune

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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Office had been poorly managed due to Complainant’s supervision. ROI, at 95. Complainant
averred that he then approached the Postmaster after the meeting and told the Postmaster that he
would appreciate if he would not make such comments about him in front of everyone in the
office. Complainant averred that the Postmaster then to said to him to get his “ginny whop (sic)
ass” out of his office and get back to his assignment. Id. at 96. The Postmaster however denied
directing any such language toward Complainant. Id. at 200.

Complainant further maintained that management followed him on his route on multiple days,
which he felt was unjustified given that he has worked as a Letter Carrier for over 24 years. Id. at
100-101. He also maintained that management pushed him to perform his job faster and told him
he was too slow. The Postmaster did not deny that Complainant was followed by management at
times but explained that managers have the right to supervise employees any time they are on the
street to address unwarranted overtime. Id. at 201-02.

Further, according to Complainant, on March 18, 2017, the Postmaster approached him with his
arms raised, and yelled and screamed at him on the workroom floor. Id. at 108. Complainant
stated that a coworker observed the Postmaster’s behavior and the Postmaster asked the
coworker what his problem was. Complainant also attested that, when he reported to work on
March 28, 2017, his case had been moved to the middle of the floor. Id. at 112. In response, the
Postmaster explained that Complainant’s case was in the corner where management could not
observe his performance, and therefore the decision was made to move his case where he could
be observed. Id. at 207-208. The Postmaster stated that Complainant frequently submitted
overtime requests, citing office time, but was witnessed eating breakfast when he should have
been working. Id.

Complainant also averred that, on April 18, 2017, the Postmaster was giving a service talk and
he (Complainant) raised his hand to ask a question. Id. at 120-122. Complainant stated that, at
the end of the service talk, the Postmaster came to him, put his hand in his face and told him
never to interrupt him again. Id.

Subsequently, on May 4, 2017, Complainant’s first-level supervisor (S1) made the decision to
conduct a pre-disciplinary interview (PDI) with Complainant. Id. at 257-58. S1 explained that he
conducted the PDI based on Complainant not having justification for submitting a request for
overtime and leaving his key in the ignition of his postal vehicle with the door open while he was
in a drugstore making a delivery. Id.

On August 8, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him
to a hostile work environment on the basis of age (53) when:

1. In August 2016, the Postmaster singled him out at a safety talk;

2. On dates to be specified, he was followed on his route by management;

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3. On March 18, 2017, the Postmaster confronted him with his arms raised and yelled at
him;

4. In March 2017, his case was moved;

5. On April 6, 2017, and other possible dates to be specified, he was threatened by
management;

6. On April 18, 2017, the Postmaster put his hands in his face and told him never to
interrupt him again; and

7. On May 1, 2017, he was given a pre-disciplinary interview (PDI).

Following 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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

The Agency initially addressed claims 2, 4, and 7 as claims of disparate treatment, finding that
Complainant did not establish that its legitimate, nondiscriminatory reasons for its actions were
pretextual based on his age. The Agency noted, with regard to claim 2, that management
observed Complainant to make sure he completed his route on time, so he would not make
unsubstantiated requests for overtime. In addressing claim 4, the Agency noted that Complainant
submitted requests for overtime frequently and cited office time as causing his requests.
Therefore, a decision was made to move his case where his work could be observed by
management. The Agency, further noted, with regard to claim 7, that Complainant was given the
PDI for not having justification for submitting a request for overtime and for leaving his key in
the ignition of his postal vehicle with the door open while he was in a drugstore making a
delivery. The Agency found that Complainant failed to show that management was motivated by
his age with respect to any of its actions. The Agency further found that Complainant did not
establish a hostile work environment with respect to claims 1 through 7, as he did not show that
management was motived by discriminatory animus. The Agency also found that Complainant
provided no evidence of any conduct that was sufficiently severe or pervasive to rise to the level
of a hostile work environment. In so finding, the Agency noted that Complainant did not show
that management created a hostile, abusive, or offensive work environment, which unreasonably
interfered with his work performance.

CONTENTIONS ON APPEAL

Neither party filed a brief on appeal.

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STANDARD OF REVIEW

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 Chap. 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”).

ANALYSIS AND FINDINGS

Disparate Treatment (Claims 2, 4, and 7)

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially 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, 441 U.S.
at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case
of discrimination based on his age, the Agency articulated legitimate, nondiscriminatory reasons
for its actions regarding claims 2, 4, and 7. Specifically, regarding claim 2, the Postmaster and
S1 explained that Complainant was followed to make sure he completed his route on time, so he
would not make unsubstantiated requests for overtime. With regard to claim 4, the Postmaster
attested that Complainant submitted requests for overtime frequently, and therefore a decision
was made to move his case where his work could be observed by management. In addressing
claim 7, S1 recalled that he conducted the PDI based on Complainant not having justification for
submitting a request for overtime and leaving his key in the ignition of his postal vehicle with the
door open while he was in a drugstore making a delivery.

The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons
were a pretext for discrimination. Burdine, at 254. Notwithstanding Complainant's contentions in
the record, we find that he has not established that the Agency's reasons were pretext for
discrimination based on his age.
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There is simply no evidence here that the Agency was motivated by discriminatory animus. We
note that Complainant did not dispute that he requested overtime as management alleged or that
he left his keys in his vehicle with regard to claim 7.
As Complainant did not request a hearing, we do not have the benefit of an Administrative
Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based
on the weight of the evidence presented to us. Based on the record before us, we are not
persuaded that Complainant has shown that the Agency's conduct was based on his age.
Hostile Work Environment

To establish a claim of harassment complainants must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on
their 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). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

As discussed above, Complainant failed to demonstrate that the Agency's actions in claims 2, 4,
and 7 were based upon his age. Therefore, we find that, under the standards set forth in Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment
regarding these claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc.
A finding of a hostile work environment is precluded by our determination that Complainant
failed to establish that the Agency's actions in claims 2, 4, and 7 were motivated by
discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21,
2000).

With respect to claims 1, 3, 5, and 6, we find that Complainant did not establish that the
Agency’s actions were severe or pervasive enough to establish a legally hostile work
environment. Although Complainant's work environment may not have been ideal, we do not
find that it was hostile and/or abusive based on Complainant's age. We note that not every
unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation.
See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of
Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). Even assuming that the conduct
alleged was sufficiently severe or pervasive to create a hostile work environment, we find that
Complainant has not shown that any of the alleged incidents were motivated by discriminatory
animus. We note that Complainant alleged that the Postmaster call him a “ginny whop ass,” a
derogatory name for a person of Italian origin.
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The Postmaster however denied using such offensive language, and we can find no corroborating
evidence that the Postmaster made the statement. Nevertheless, even assuming that the
Postmaster made the statement as alleged, there is no dispute that this comment did not relate to
Complainant’s age and Complainant did not allege discrimination or harassment based on race or
national origin. As such, we find that Complainant has not established that he was subjected to a
hostile work environment based on his age, as alleged.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision.

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.
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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 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

September 4, 2019
Date