Edmund L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 14, 2019

0120181658 (E.E.O.C. Aug. 14, 2019)

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

Edmund L.,1
Complainant,

v.

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

Appeal No. 0120181658

Hearing No. 510-2015-00341X

Agency No. 4G320020914

DECISION

On April 15, 2018, 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
March 19, 2018, 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 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

Whether the Final Agency Decision, (FAD) correctly determined that Complainant did not
establish that he was subjected to discriminatory harassment based on race, color, sex, age, and
retaliation (prior EEO activity) when:

1. On July 18, 2014, he was issued a Proposed Letter of Warning in Lieu of a 14- Day-Time-
Off Suspension for Unacceptable Conduct;
2. On August 26, 2014, and October 29, 2014, he was ordered to drive only a GSA vehicle to

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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and from his assigned duty station;

3. On October 14, 2014, he was forced to work in excess of 12 hours;

4. On October 15, 2014, he became aware that management had requested his investigation
by the Office of Inspector General (OIG) and that they had installed a Global Positioning
System (GPS) on his privately owned vehicle (POV);

5. On August 19, 2014, he was denied a lateral to the Ponte Vedra Beach Postmaster position
and, on October 7, 2014, became aware he was not selected for the position;

6. On or about June 22, 2013, management failed to alert him to a threat of violence directed
towards him by a Postal Service employee; and

7. Beginning on December 20, 2013, he was involuntarily detailed to another office.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the
Agency’s Post Office facility in Brunswick, Georgia.

On December 17, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (Caucasian), sex (male), color (White), age (61),
and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
and the Age Discrimination in Employment Act of 1967 (ADEA) as set forth above.

Claim 1:

Complainant asserted that Acting Manager, Postal Office Operations (MPOO) issued the Proposed
Letter of Warning (LOW) in lieu of a 14-Day-Time-Off Suspension to him for Unacceptable
Conduct, with the involvement of MPOO, Manager, Labor Relations (MLR), and Manager,
Human Resources (MHR). He cited the three specifications set forth in the LOW which alleged
that he failed to follow the instructions of the Labor Relations Specialist (LRS) and Acting MPOO
when in an effort to reconcile testimony provided by a clerk in an unrelated investigation, he spoke
directly to the clerk; that he attempted to intimidate an employee being interviewed by LRS; and
that he abused his authority by authorizing a medical provider to conduct a post-incident drug
screen of an employee, (E1), who unexpectedly sought medical treatment for an insect bite.
Complainant claimed that the three specifications were based on unsubstantiated hearsay.

He generally condemned the LOW as outside the normal practice and intent of the Postal Service
to issue discipline based on unsubstantiated hearsay and unchallenged allegations, which he
believed shows that the LOW was issued in reprisal for his earlier EEO complaint.

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Regarding the first specification that he failed to follow directions, Complainant explained that the
alleged direction originated from LRS, who told Complainant to not confront any employee about
their statements, but she, as a lower-level employee, was not in a position to issue directives to
Complainant. Complainant added that the actual directive he received was to not retaliate against
any employee based on the information discussed during the meeting.

Complainant added that after an Acting supervisor was a witness to LRS’s use of foul and offensive
language against him, he was confronted by LRS and the Acting MPOO, and two weeks later, the
Acting supervisor was returned to his craft assignment. He claimed that LRS and Acting MPOO
violated their own instructions by speaking to the Acting supervisor. Complainant stated that he
contacted a clerk, and reported the contact that same day to Acting MPOO, which he insisted
showed that he did not think that he was violating Acting MPOO’s instruction. Complainant
explained that the clerk’s voluntary August 2013 statement to him does not indicate that the
employee was under any duress or pressure, and that the clerk merely provided a factual response,
which plainly stated the condition of the mail on a particular date. Complainant asserted that he
was being pressured to issue corrective action to the supervisor on duty, who Acting MPOO
personally disliked, and that Acting MPOO and another employee coerced the clerk in December
2013 into writing another statement. He concluded that it was absolutely proper of him to explore
statements and gather additional evidence before considering corrective action against the
supervisor.

Regarding the second specification that he attempted to intimidate an interviewee, Complainant
stated that this allegation is nothing more than an attempt to load unrelated and unsupported
charges into the LOW, and that this specification was not mentioned in a March 11, 2014,
Voluntary Downgrade presented to him by Acting MPOO. He added that there is no evidence that
he knew LRS was in the building and using the training room or that Acting MPOO authorized
her to use the room and informed Complainant of the interview.2

Complainant asserted that he had scheduled a group of applicants to be interviewed for positions
in the Brunswick, Georgia, (GA) office and the prior evening, he had placed the supplies he would
need the next day in the training room. He contended that he was not aware that LRS was using
the room until he entered to turn on the lights and saw her there. Complainant claimed that he
suggested to her that she use the adjoining break room, which she angrily rejected, so he had to
retrieve the materials he had set up, and reset them in the break room. He maintained that he was
delayed 45 minutes in starting his interviews, which affected the time frames for the interviewees.

2 The record contains a document titled Voluntary Downgrade and Waiver and Release Agreement
between Complainant and the Postal Service, dated March 11, 2014. The documents stated that
C omplainant would agree to a LOW in lieu of a 14-Day Suspension, and a voluntary
downgrade to an EAS-20 Postmaster position in Kingsland, GA, in exchange for Complainant
waiving and releasing his active EEO complaints and any other claims he might have against the
Postal Service.

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Complainant averred that there was no evidence which would show that he was trying to intimidate
the employee LRS was interviewing, since he knew nothing about the interview. He concluded
that the specification is speculative and cumulative, and that the logical conclusion was that this
was an unintended, embarrassing display of disorganization, which would have been avoided by
communicating the use of the training room; and that Acting MPOO is guilty of piling on charges
in order to bolster the credibility and legitimacy of the discipline.

As to the third specification that he authorized a post-incident drug screen for E1, Complainant
asserted that this is another make-weight allegation, stating that there is no evidence that there are
specific instructions contrary to how he acted. Complainant acknowledged that E1 failed to secure
the higher-level authorization for non-life-threatening medical attention outlined in the safety
handbooks and employee manuals.

He asserted that he asked E1 if she wanted medical treatment, and after she declined, he advised
her that if she desired future medical attention, she would have to contact management to receive
further instructions. He explained that he has to balance an employee's safety with protecting the
interests of the Postal Service; and that while E1 sustained an on-the-job injury, he did not engage
in any malice or harassment. He accused Acting MPOO of lying when he attributed Complainant's
actions to suspicions that E1 had drug issues, and reiterated that his actions were based on E1's
demonstrated behavior.

Complainant asserted that the allegations in the LOW do not rise to the level of severity necessary
to sustain the proposed disciplinary action; and that the charges in the LOW are based on hearsay,
circumstantial evidence, and unsupported speculative opinions. He indicated that MPOO2 denied
his appeal of the LOW because Complainant's responses were "self-serving," without conducting
a complete and thorough investigation.

Complainant averred that prior to his rejection of the March 11, 2014, unsolicited Voluntary
Downgrade letter which, if he accepted would have resulted in a LOW being issued in Lieu of a
14-days Suspension, there was no discussion of any disciplinary action. He asserted that MPOO2,
the deciding official, violated Sections of the Employee and Labor Relations Manual (ELM) by
delaying the issuance of his decision regarding his appeal of the LOW.

Acting MPOO asserted that he issued the Proposed LOW to Complainant because Complainant
confronted the clerk after he had interviewed Complainant and instructed him specifically not to
confront any employee whose statement was shared with him. He added that Complainant was
advised that the information shared with him was not to leave the room.

He stated that he conducted an Investigative Interview, (II) with Complainant; and that at the II,
Complainant was given the opportunity to explain the circumstances regarding the issues involved
in the LOW.

Acting MPOO claimed that at the II, Complainant denied that Acting MPOO gave him those
instructions but, since he was at the meeting, he knew Complainant's statement to be false.
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MPOO2 affirmed that Acting MPOO issued the proposed LOW and asserted that he was not
involved with its issuance. He explained that Complainant appealed the proposed LOW to him,
as the deciding official, and that he decided to sustain the penalty.

MLR asserted that he provided guidance to Acting MPOO who made the decision regarding the
issuance of the LOW. He stated that Acting MPOO held two IIs with Complainant, accompanied
by a Labor Relations Specialist each time; and that Complainant was given the opportunity to
explain the circumstances surrounding the relevant issues.

MHR denied that she was the proposing or deciding official on Complainant's LOW, adding that
she only had an advisory role providing guidance.

She stated that Acting MPOO conducted an II, but that she was not involved in it or in the
subsequent discussions.

Claim 2:

Complainant alleged that he was ordered to drive only the General Services Administration (GSA)
vehicle to and from the Brunswick, GA, Post Office to the Kingsland, GA, Post Office every day
beginning in mid-August 2014. He contended that while MPOO2 made the decision to order him
to drive the GSA vehicle, Acting MPOO was a part of the decision-making process.

Complainant claimed that management told him that he was to drive the GSA vehicle in order to
save travel expense money; and that the Office of Inspector General (OIG) agents informed him
that the GSA vehicle he was using was equipped with Global Positioning System (GPS) tracking.
He alleged that management wanted the GPS data from the GSA vehicle to continue proving their
false case against him for not being at work.

Acting MPOO stated that he did order Complainant to start driving a GSA vehicle. He indicated
that Complainant had previously been given a GSA vehicle that he was not using; and that he had
been filing for mileage from traveling to and from Kingsland daily. Acting MPOO asserted that
Complainant had been told that he could go back to his office in Brunswick to work and chose
instead to stay at Kingsland.

MPOO2 related that he ordered Complainant to drive a GSA vehicle to and from his assigned duty
station over the alleged two-month period. He stated that Acting MPOO initially put use of the
GSA vehicle in place; and that upon assuming responsibility as MPOO over Complainant, he
reiterated that the policy would continue in order to reduce travel costs. MPOO2 indicated that
Complainant was temporarily assigned to Kingsland, GA, which made his transportation situation
unusual.

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Claim 3:

Complainant alleged that on October 9, 2014, MPOO2 ordered him to conduct six External First-
Class Measurement System (EXFC) audits on October 14, 2014, in six different post offices in
Florida (FL). He noted that a seventh post office was deleted from the list because it would have
resulted in too much work for that day.

Complainant asserted that he departed the Brunswick, GA, Post Office at approximately 6:30 a.m.
and returned at approximately 9:00 p.m. He claimed that each audit required 1-1.5 hours; and that
7 additional hours were required for travel time and lunch. Complainant stated that his normal
schedule, including commuting time, is nine hours, and that it is very uncommon to send a
postmaster away from the office, the day after a federal holiday, to conduct such audits.

He maintained that MPOO2 never inquired into the discrepancies found in the audits, and it
became apparent that the EXFC audits were merely a ruse to get him out of the Kingsland, GA,
Post Office so that OIG agents could interview the employees there. Complainant contended that
he was embarrassed and humiliated by his employees being left with the impression that he was
not performing his duties and had committed a crime. He claimed that he was not aware of any
postmaster even working as much as 10 hours in a day, and that MPOO2 prohibits manager or
supervisor hours over 8 hours per day for budgetary reasons.

Acting MPOO asserted that he did not know anything about this claim, as he was not
Complainant's supervisor at the time.

MPOO2 denied instructing Complainant to work in excess of 12 hours, and claimed that he had
never instructed anyone to work in excess of 12 hours.

Claim 4:

Complainant noted that he became aware that management, including Acting MPOO, MPOO2,
MLR, and MHR had requested that he be investigated by the OIG; and that they had a GPS
installed in his POV. He asserted that management was bent on proving a false narrative of his
alleged stealing time, after he had filed a series of EEO complaints in March 2012 against a
previous MPOO who tried to get him on a similar accusation at that time.

Complainant claimed that while he was under surveillance for 10 months by the OIG, no one in
management told the OIG that his commute time was included in and authorized as part of his tour
of duty. He asserted that management purposely conducts such meaningless investigations in
order to force older, tenured employees out of the Postal Service.

Complainant related that he had no idea why a GPS was installed on his POV, other than that
management was trying to fabricate a case against him. He indicated that management has never
provided a reason or discussed why he was investigated by the OIG. Complainant alleged that
management acts like nothing happened while he was subjected to an intense two-hour
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interrogation, which triggered a diabetic episode and embarrassed and humiliated him. He opined
that management should not spend funds and resources without explanation and discussing matters
with the affected employee.

Complainant added that he was just left hanging as to what was going to happen next; and that
they wanted to intimidate and retaliate against him to inflict severe emotional, physical and
psychological damage. He noted his interrogation by the OIG agents, which included that he was
being investigated for the criminal violation of stealing time from the Postal Service, and that the
OIG had surveillance evidence, which they were going to turn over to the District Attorney for
prosecution.

Complainant asserted that he assured the agents that the specific dates they asked about were
covered by approved, documented annual or personal leave, with him sometimes taking lunch late.
He claimed that his schedule was 08:30-17:30, Monday through Friday, so he would leave his
house at 08:30 and arrive at work between 09:30 and 10:00, departing between 16:15 and 16:45,
and arriving back at his residence at 17:30. Complainant alleged that he told the agents that there
was an approved Postal Service (PS) Form 1723 on file which added his two-hour commute time
as part of his 8-hour day; he claimed that he told the agents that they should have checked his
schedule before they started their investigation; and that this is the second time management has
omitted information and accused him of stealing time when his absences were approved by his
supervisors. Complainant stated that he told the agents that he had no further information to
provide them and declined their request to provide a written statement. He asserted that this
investigation was designed to intimidate and harass him to prevent him from going forward with
his EEO complaints, and to justify the selection of another employee to the Ponte Vedra Beach,
FL, Postmaster position.

Acting MPOO claimed that he was aware of the prior investigation of Complainant due to an OIG
hotline complaint regarding Complainant not being at work, but he was not aware of the
interrogation by the OIG.

MPOO2 denied any involvement in any decision concerning Complainant's being investigated by
the OIG.

MPOO related that he did not know anything about this matter, as he was detailed to the Southern
Area Office at the time; but that he understood that an investigation began because of an employee
complaint to the OIG hotline.

MHR noted that an employee contacted the OIG hotline and filed a complaint that Complainant
was not working regular hours at the Kingsland office on a daily basis. She added that the
employee reported that Complainant would arrive for work at different hours, leave during the
workday for extended periods of time and leave work early.

MHR noted that the employee and Complainant's immediate manager did not know where
Complainant went during his absences. She related that management requested that the OIG
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perform an investigation, but that they never requested that a GPS be installed on his POV,
asserting that that a GPS was never installed on Complainant's POV.

MHR added that the OIG investigation supported the conclusion that he was not in his office on a
regular basis and failed to inform his immediate supervisors of his absences. She asserted that
Acting MPOO interviewed the employee who had filed the complaint, as well as other members
of the Brunswick office and all of them confirmed Complainant's frequent extended absences from
the office. She maintained that Acting MPOO had also been unable to contact Complainant at his
office several times.3

On August 8, 2014, the OIG agents reviewed the loss analysis with the Manager, Finance, (MF)
Gulf Atlantic District, based on the surveillance times. The calculation by MF indicated that over
the 22 days at issue, the difference between what Complainant worked and what he received to in
pay amounted to $2,448.67; and assuming the dates to be representative, the annualized loss to the
Postal Service would be $28,938.80.

3 The record contains an Investigative Report dated October 15, 2014, by the OIG agents regarding
the investigation of Complainant's failure to work eight-hour days. An OIG agent surveilled
Complainant between June 4, 2014 and July 14, 2014, and found the following data regarding
Complainant's work hours in the office:

• June 4 - 6.5 hours;
• June 5 - 3 hours, with 2 hours of personal leave;
• June 6 - 5 hours;
• June 9 - 6 hours;
• June 10 - 3.5 hours;
• June 11 - 5 hours;
• June 16 - 6.25 hours;
• June 17 - 7 hours;
• June 18 - 5.5 hours;
• June 19 - 6.5 hours;
• June 20 - 4.5 hours;
• June 23 – 5.25 hours;
• June 24 - 4.5 hours;
• June 25 - 6.75 hours;
• June 26 - 4 hours;
• June 27 - 5 hours;
• July 7 - 7.5 hours;
• July 8 - 4 hours;
• July 9 - 4 hours;
• July 11 - 4.5 hours with 2 hours of personal leave;
• July 14 - 4 hours. (IF, Exh. 3, pp. 3-8).

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Claim 5:

Complainant asserted that he requested a non-competitive reassignment to the Ponte Vedra Beach,
FL, Postmaster position in writing to Acting MPOO and the Acting Manager, Customer Services
Operations, (AMCSO) but that he received a denial of his request from AMCSO. He averred that
he was treated differently in that he was required to compete for the position, even though the
posting clearly stated that a written request for non-competitive reassignment was the only
requirement of a qualified and requested voluntary downgrade. Complainant contended that he
was not given a reason why he was not given the voluntary downgrade to the Ponte Vedra Beach
position, but maintained that he should not have to compete for a downgrade. He hypothesized
that he was not given the requested downgrade because management was sure that the OIG agents
would arrest him after his interrogation.

Complainant added that he sent in a competitive application through “eCareer” for the Ponte Vedra
Beach position. He claimed that he called AMCSO about two months later to ask about what areas
of the interview he was weak in, and was told that she had identified no weak areas and that he
had performed equally with the selected candidate. Complainant contended that since there was
no substantive reason given why the selectee was selected instead of himself, his age and EEO
activity must have been the reason for the selection. He indicated that he had more experience
than the selectee and had managed larger offices than Ponte Vedra Beach in the past.

Acting MPOO stated that he heard that Complainant had asked for a lateral transfer to the Ponte
Vedra Beach, FL, Postmaster position, but that he was not involved in that decision. He added
that Complainant was not selected for the Ponte Vedra Beach position; and that he was not part of
the selection process for that position.

He explained that he told Complainant that he would have to request a “lateral” from the selecting
official, and that he was neither the selecting official nor the MPOO for the area in which the Ponte
Vedra Beach office was located.

Acting MPOO asserted that AMCSO, who was the selecting official, would be the management
official to address the lateral reassignment request decision.

MPOO2 related that he was not aware of any lateral transfer request made by Complainant to the
Ponte Vedra Beach, FL, Postmaster position; and that he was not part of the selection process for
the position.

AMCSO asserted that everyone interested in the position was required to compete for the Ponte
Vedra Beach, FL, Postmaster position. She affirmed that she interviewed Complainant by
telephone, but made the decision to not select him for the position.

She explained that all applicants were evaluated based on their “eCareer” posting and the results
of their phone interviews; and that the selectee was the individual she selected for the position.
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Section 752(d) of the Handbook EL-312, Employment and Placement, which provides that when
an application for a non-competitive voluntary downgrade is received, “selection is solely at the
discretion of the selecting official.”

Claim 6:

Complainant alleged that an employee assigned to the Townsend, GA, Post Office, reported to the
Postmaster of that office, and the Inspection Service, that a rural carrier, (E2) had said on the work
room floor that he wanted "to cut Complainant's throat in front of his daughter." He added that no
investigation was ever conducted into the matter; that E2 was terminated; and that he did not learn
about this death threat until about four months after it was allegedly made. Complainant stated
that he has never been approached by the District Threat Assessment Team (TAT), and that by
failing to call in the TAT to investigate the death threat, the Postal Service placed him, his daughter,
and other employees at risk of serious injury, harm, or death. He contended that under the
appropriate regulations, E2’s threat clearly qualified as a Priority 1 (Extreme Risk) matter, which
should have been thoroughly investigated.

He explained that E2 had been terminated and reinstated the year before; and that E2 had a history
of making inappropriate threatening remarks. He claimed that E2 stalked him in the Wal-Mart
parking lot and parked next to him. Complainant concluded that the Postal Service failed to
provide him with a safe work environment, free of threats or actions by a disgruntled employee.

Complainant included a statement regarding events that occurred about three years prior in which
E2 refused to follow instructions and continued to be aggressive, combative, and disruptive during
a service talk, until Complainant instructed him to leave the workroom floor and that he would not
be working that day. He added that E2 continued to walk around the building talking and
complaining; and that he brought E2 into the office to find out why he was so erratic, irrational,
and belligerent.

Complainant alleged that E2 became increasingly aggressive and disrespectful, and he used street
language despite being told several times to calm down. He claimed that after he asked E2 to turn
in his badge, E2 yelled that Complainant was a racist, a terrorist, that “you are gonna get yours,”
and used profane language. Complainant asserted that the union steward and supervisor had to
come between them, as they thought E2 was going to become physical with Complainant. He
concluded that the union and E2’s coworkers were scared that something might happen, so
Complainant called an OIG agent, who in turn notified local law enforcement.

In response, the employee who Complainant stated had informed him about E2’s alleged threats
submitted an unsworn statement, in which she stated that she and E2 were present at Complainant's
and his wife’s court divorce proceeding to testify on behalf of Complainant's wife concerning his
negative and intimidating behavior. She remarked that four days later, E2 told her at work that the
daughter was "lucky that he didn't cut her daddy's throat right there in front of everybody. That's
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what I should have done." She concluded that she reported the comment to the Postmaster, who
agreed that it needed to be documented and reported to the Inspection Service.

Acting MPOO stated that he did not remember failing to alert Complainant to E2’s threat of
violence against him. He asserted that the employee who had reported the matter told him about
the threat and he had her investigate the threat after consulting with MLR, since E2 did not directly
report to Acting MPOO.

MPOO2 related that he was unaware of any threat of violence against Complainant; and LRS
stated that she had no knowledge regarding the threat of violence directed towards Complainant.

MPOO asserted that he knew of an off-duty incident during a civil proceeding between
Complainant and his former wife where an employee who was called to appear on the wife's behalf,
made a comment that was perceived to be threatening; and that he understood that Complainant
was present when E2 made his statement, and he is not certain that the statement was a direct
threat, as he was only aware that E2 stated that he should have acted out against Complainant.

He added that he advised Acting MPOO to ensure that a report was completed and submitted; and
that E2 was issued a Notice of Removal partly in response to his statement against Complainant.

He stated that he did not make any decision to not alert Complainant, reiterating that it was his
understanding that Complainant was present when the comment was made. MPOO asserted that
even if Complainant was unaware of the comment, it was not his responsibility to notify
Complainant.

MHR explained that she did not recall a threat of violence against Complainant, but that in an e-
mail from MPOO to Acting MPOO, the Inspection Service investigated the allegation and
determined that it was not a credible threat. She recalled that Complainant and E2 had been
involved in a verbal altercation; and that when she met with Complainant, he claimed that he had
been threatened by E2 and nothing had been done about it.

MHR affirmed the events surrounding the alleged threat; and indicated that E2’s statement was
included in the notice of removal issued to him.

The Postmaster at Townsend, GA remarked that her employee witnessed E2 make a statement
against Complainant; and that the employee left the building, called her to let her know what E2
had said, and wrote a statement as to the remarks he had made. She noted that she called the
Inspection Service to report the incident and forwarded a copy of the employee’s statement to
Acting MPOO. She asserted that the Inspection Service asked her if E2 had ever caused any
problems and she told them that he had not; and indicated that the Inspection Service told her to
not approach him about the statement so as to not cause a hostile work environment, and denied
that Complainant's protected classes were factors in the decision to not alert him of the threat of
violence.

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Claim 7:

Complainant noted that although his duty station is Brunswick, GA, he was been involuntarily
detailed to Jacksonville, Florida, to Fernandina Beach, Florida and, to Kingsland, GA over a one-
month period. He contended that he was not given any reasons for the involuntary details, and
articulated that the details specifically violated the Postal Service's policy regarding such
involuntary reassignments.

Acting MPOO acknowledged that he involuntarily detailed Complainant to Kingsland because one
of his employees stated that he felt intimidated after Complainant failed to obey Acting MPOO’s
instructions regarding the confidentiality of statements provided to Complainant. He added that
at the conclusion of the investigation, Complainant was given the option of returning to the
Brunswick, GA Post Office, but he voluntarily chose to remain at Kingsland.

MPOO noted, and both MPOO2 and MHR affirmed, that he provided guidance, but did not make
the actual decision regarding the placement of Complainant in an involuntary detail. He indicated
that Complainant's manager made the decision to place him in an involuntary detail while
Complainant's conduct was investigated.

MHR explained that three employee unions had requested an investigation and intervention into
allegations that Complainant had harassed employees there and created a hostile work environment
at the Brunswick office. She asserted that Complainant was assigned as the Officer-in Charge
(OIC) at the Kingsland, GA Post Office temporarily, pending the investigation of possible
interference with an official investigation and inappropriate conduct.

In support of his claims that the Agency’s actions were motivated by his protected classes,
Complainant asserted that the Acting Postmaster, (AP) Brunswick, GA, a younger Black African-
American male, was involved in a roll-away motor vehicle accident in late 2013, which he failed
to timely report, but did not receive any corrective action.

He alleged that AP is rumored to be absent from his assigned unit regularly to attend to personal
business at his local car lot. Complainant claimed that Acting Manager, (AM) St. Simons Island
Georgia, a younger White female, was not required to use a GSA vehicle to commute between
duty offices. He added that a younger White male employee was reimbursed when he was detailed
from Waycross, GA, to Brunswick, GA.

Complainant also asserted that his protected classes is the reason why he was not informed of the
death threat made against him, and why the matter was not investigated because both the accuser
and the District Manager, HR were African-American and Black, and the latter was also Female.

All the management officials Complainant named as having discriminated against him denied
knowing anything about a rollaway accident that AP had. MPOO2 noted that the third comparator
had already been named to the Waycross position before he became the MPOO; and that the
comparator was not detailed to another office by MPOO2.
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Complainant averred that the Ponte Vedra Beach position was ultimately awarded to a less
experienced, younger individual; he added that a younger Hispanic, male, was allowed to transfer
to the “EAS”-22 Postmaster position in Hendersonville, Tennessee, after an OIG investigation and
Congressional inquiry regarding falsification of records and other policy violations.

AMCSO noted that the selectee was more qualified for the Ponte Vedra Beach position than
Complainant because Complainant received an overall raw score of 40.50 while the Selectee
received an overall raw score of 48.75 in the written responses and interview.

In her summarized notes, AMCSO indicated that Complainant answered the interview questions,
but acknowledged little experience with Highway Contract Routes (HCR), of which the Ponte
Vedra Beach office had many; and the Selectee not only answered all of the interview questions,
but also voiced a clear vision of where he wanted the office to go.

Complainant claimed that LRS, a younger African-American, Black, female, was treated
differently than he was treated because she used foul, offensive language on the workroom floor
and intimidated an employee and did not receive any disciplinary action for the infractions.

MHR attested that no one had engaged in the same or similar conduct as Complainant had. MLR
testified that LRS did not engage in any conduct similar to that of Complainant.

MLR noted that seven of his direct reports had been involuntarily detailed, but that since they are
Labor Relations Specialists, they are not proper comparators for Complainant.

Complainant asserted that he was interviewed by the OIG two weeks before his scheduled EEO
hearing in his prior complaints in order to intentionally retaliate against him. He added that the
timing of his rejection for the Ponte Vedra Beach position showed that Acting MPOO and MPOO2
were making negative comments and providing negative feedback in order to retaliate against him.

Complainant claimed that he was not informed of the death threat because he had by that time
already filed two EEO complaints, and that management did not feel that they had to either notify
him about the death threat or conduct an investigation. He alleged that management has issued
disciplinary action against him for the mere allegation of intimidation, and that they most likely
hoped something would happen to him so that the pending complaints and litigation would
disappear.

The Agency explained that the colleagues the complainant points to as being treated better, are
only a few years younger than he is.

The Agency also asserted that Management's reasons for issuing the LOW and making
Complainant use a GSA vehicle were free from any taint of discriminatory intent; and that
regarding the denial of the lateral transfer and promotion to the Ponte Vedra Beach position, the
selecting officer for those decisions knew nothing about Complainant and his prior history and
made her decisions strictly on the merits.
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Regarding harassment, Complainant alleged that he has been targeted, retaliated against and
harassed because he has spoken out against waste, fraud, and abuse; and that he has been given
much more severe corrective action than others who have engaged in similar infractions.
Complainant claimed that apart from his EEO complaints, he has not told anyone that he believes
that he is being harassed, as nothing but retaliation results from verbal attempts to resolve issues.
He acknowledged that he did not inform the alleged harassers that their actions were harassing,
stating that he was afraid of retaliation. Complainant alleged that when he told Acting MPOO that
he was harassing and retaliating against him for the issuance of the LOW, Acting MPOO just
smirked, told Complainant that that was his opinion, and left.

Acting MPOO stated that Complainant told him that management's treatment of him constituted
harassment, but that Complainant’s assertion was meritless, as Complainant was the one who was
given the opportunity to respond when numerous employees under his supervisor complained that
he had harassed them. He explained that Complainant proved the point that it was Complainant
who had been accused of harassment by directly confronting the clerk about the statement
attributed to him as soon as the meeting with Acting MPOO was over.

MPOO reported that Complainant wrote a letter to MHR and MPOO2 in February 2015, alleging
that management's actions constituted harassment and expressing his concern about not being
returned to the Brunswick office. MHR responded to the letter in writing.

MPOO asserted that Complainant's letter did not provide any new information that would warrant
a harassment investigation; and that the letter dealt with issues of office performance, safety
concerns, and the overall climate in the office. He averred that the letter was not specific and that
it alleged that the agency was engaged in continuing reprisals and harassment, indicating that the
Inspection Service gave a stand up talk to the employees of the Brunswick office regarding
appropriate conduct on the day of Complainant's return to that office.

MHR asserted that on March 6, 2015, Complainant provided her and MPOO2 a letter requesting
reconsideration to return to his position of record; and that in that letter, he cited management's
actions, which he claimed constituted harassment and that he anticipated reprisals, harassment and
disparaging treatment when he is returned to his position of record. She noted that she met with
Complainant and MPOO2 to discuss his concerns and developed a transition plan for Complainant
to return to his office. She also asserted that Complainant raised no specific allegations to support
a claim of harassment, reiterating MPOO’s information about the contents of Complainant’s letter
including that Complainant made unsubstantiated claims that his vehicles had been vandalized.

All the named management officials denied that Complainant's race, color, sex, age, or prior
protected activity were factors in the actions that were taken.

A review of the record evidence disclosed the agency completed the investigation and transmitted
the Report of Investigation (ROI) to Complainant of complaint No. 4G- 320-0102-12 on August
14, 2013. The record further disclosed Complainant requested an EEOC hearing for said
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complaint on September 9, 2013 and the agency forwarded a copy of the ROI to the EEOC on
September 17, 2013.

In addition, a review of the case details for complaint No. 4G-320-0097-13 revealed the Agency
completed its investigation and forwarded a copy of the ROI to Complainant on September 3, 2013
and Complainant requested an EEOC hearing on September 30, 2013. The Agency forwarded a
copy of the ROI to the EEOC on October 4, 2013. Therefore, the complainant's prior EEO
complaints were undergoing processing for a hearing at the time of the incidents he raised in the
instant complaint.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but
subsequently withdrew his request. The AJ remanded the case to the Agency for issuance of a
FAD.

Consequently, 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.
CONTENTIONS ON APPEAL

Among other things, Complainant contends that he has established by preponderant evidence that
the legitimate business reasons concerning Claims 1, 3, and 5 given by the Agency were pretext
for retaliation; and that he successfully established by preponderant evidence that the Agency
subjected him to retaliatory harassment.

He requests that the Commission find that he had been subjected to retaliation by the Agency
during the relevant time; and that the Commission award him compensatory damages and a
reimbursement of his reasonable attorneys' fees for the retaliation and damage to his professional
reputation and any other relief that it deems equitable. Complainant requests that, in the
alternative, the Commission remand the matter back to the Agency for a supplemental formal
investigation into the material facts of his discrimination complaint.

Among other things, the Agency asserts that the record in this case does not establish the essential
elements of Complainant’s claims by a preponderance of the evidence, adding that in his brief in
support of his appeal, Complainant has only addressed Claims 1, 3 and 5; and that the only purview
addressed by Complainant is reprisal.

The Agency contends that the FAD correctly concluded that the evidence does not support a
finding that Complainant had been subjected to reprisal with respect to the issuance of the LOW;
that it correctly concluded that the evidence does not support a finding that Complainant was
subjected to reprisal when he was forced to work in excess of 12 hours and when he was not
selected for the Ponte Vedra Beach postmaster position; and that the FAD correctly concluded that
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the evidence did not support a finding that Complainant had been subjected to discrimination on
all of the other issues. It therefore requests that the Commission affirm the FAD.

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 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”).

ANALYSIS AND FINDINGS

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). He 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. Co. 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. 802 at
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).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, color, sex, age, and reprisal; we find that the Agency articulated legitimate,
nondiscriminatory reasons for management’s actions.

The Agency explained that following investigation of reports from employees that Complainant
created a hostile work environment at the Brunswick Post Office, Acting MPOO issued the
proposed LOW as discipline, and temporarily detailed Complainant to another office for failing
to follow instructions and failing to abide by agency policies and procedures by confronting an
employee about the climate survey, interrupting climate survey interviews and ordering a drug test
on an employee. Complainant did not dispute that the three incidents occurred.

MPOO2 denied instructing Complainant to work in excess of 12 hours, and claimed that he had
never instructed anyone to work in excess of 12 hours.

AMCSO explained that Complainant was not selected for the Ponte Vedra Beach position because
the selectee was more qualified than him, indicating in her summarized notes that Complainant
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did not demonstrate HCR experience that was needed for the Ponte Vedra Beach location. She
explained that Complainant scored the second highest behind the selectee in both the interview
and written application; and her statements indicate that her selection of the Selectee was
discretionary and consistent with Section 752(d) of the Handbook EL-312, Employment and
Placement.

In an effort to show pretext, Complainant argued that the LOW, the required over 12-hour day’s
work, and the non-selection to the Ponte Vedra Beach position, were unfairly motivated, asserting
that other employees, including LRS who had used foul language on the workroom floor, had not
been disciplined for infractions in the past. However, the comparators he identified in support of
his assertions are improper because they are not similarly situated to Complainant in substantially
all aspects of their employment and circumstances to create an expectation of similar treatment as
Complainant. He also failed to provide any evidence of the alleged use of foul language by LRS.

Moreover, there is no evidence that any of the identified comparators were treated differently
because of their race, color, sex, or age. We would note that two of them were the same sex as
Complainant and two of them were the same race and color as he.

Also, Complainant has presented no evidence to show that his age or sex were determining factors
in the alleged management actions. Therefore, he has failed to show that management’s actions
were a pretext for discrimination.

Regarding reprisal, the evidence shows that Complainant had made two EEO filings in 2013 which
were undergoing processing for a hearing at the time of the incidents he raised in the instant
complaint; and management officials acknowledged that they were aware of Complainant's prior
protected activity. The evidence also shows that Complainant was subsequently disadvantaged by
adverse employment actions by management. Specifically, Complainant alleged in Claim 6 that
the incident he raised occurred on June 22 or 23, 2013, which was while his prior complaint was
still being investigated. He avowed that the incidents he referenced in Claim 7, though not timely
raised as the alleged incidents occurred prior to July 21, 2014, began on December 20, 2013.
Therefore, Complainant has established a causal connection based on temporal proximity between
his prior EEO activity and the actions he alleged in Claims 6 and 7.

Claims 2, 3, and 4 allegedly occurred after September 4, 2014, which was after his initial contact
with the EEO counselor; therefore, these claims also have a causal connection to the instant
complaint. However, these causal connections in themselves do not establish discrimination; they
only show that the alleged management actions under the circumstances may support an inference
that discrimination did occur.

Any such inference is however dispelled by management’s explanations for the alleged actions;
by Complainant’s failure to support his reprisal allegations with evidence of any comparators who
had not engaged in prior EEO activity but received more favorable treatment than he did under
similar situations; and by Complainant’s own testimony that he did not know the situations of
other employees.
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Regarding Complainant’s hostile work environment claim, we find that, under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work
environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our
determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).

We note Complainant’s contentions on appeal. However, because Complainant withdrew his
hearing request, he failed to avail himself of the discovery process which would have allowed for
an examination of the credibility or lack thereof of the Agency’s explanations. We can only
evaluate the facts based on the weight of the evidence presented to us. We therefore find that
Complainant has failed to demonstrate by a preponderance of the evidence that discrimination
occurred; or that the Agency subjected him to retaliatory harassment.

CONCLUSION

Upon careful review of the record, as well as the arguments and documents submitted on appeal,
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
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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. 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

August 14, 2019
Date