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

Equal Employment Opportunity Commission

Dec 7, 2018

0120170918 (E.E.O.C. Dec. 7, 2018)

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

Efrain B.,1
Complainant,

v.

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

Appeal No. 0120170918

Agency No. 4G-770-0196-15

DECISION

On January 3, 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
December 12, 2016, 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.

ISSUE PRESENTED

The issue presented in the instant case is whether the Agency’s final Agency decision (FAD), erred
in finding that Complainant did not establish that he was discriminated against or subjected to
harassment based on his national origin, color, sex, and reprisal for prior EEO activity regarding
29 incidents which formed the basis of his complaint.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Manager Customer
Services, EAS-22 at the Agency’s Rich Hill Station in Houston, Texas. The Agency’s FAD
thoroughly discussed the facts in the record, and the instant decision incorporates them as stated.
On October 2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of national origin (Hispanic), sex (male), color (White), age (52), and
reprisal for prior protected EEO activity when:

1. From January through May 28, 2015, his repeated requests for a downgrade to an
EAS-22 position in the Houston District were denied;
2. On April 29, 2015, he was interviewed for the position of Manager Customer
Services, EAS-22 for Spring Panther Creek and Spring Woodlands and on May 21
& 22, 2015, he was notified he was not selected for either position;
3. Beginning June 2015 and continuing, the Customer Services Operations Manager
(CSOM-1) began to direct racial remarks and vulgar language towards him and
treated him unprofessionally;
4. On July 24, 2015, he was charged Absent Without Leave (AWOL);
5. On July 26, 2015, he was instructed to report to his unit for an investigation, and
subsequently, on July 27, 2015, he was placed on Administrative Leave;
6. On July 29 and August 11, 2015, he was subjected to Investigative Interviews; and
subsequently he received a Notice of Proposed Reduction in Grade and Pay dated
September 28, 2015;
7. On or around November 9, 2015, management sent him back to Rich Hill Station
despite his request to be transferred to another facility due to his health concerns;
8. On or around November 18, 2015, he became aware management ignored his 650-
appeal request and issued him a Letter of Decision reducing his Notice of Proposed
Reduction in Grade to a 14-Day Suspension;
9. On November 19, 2015, and other dates (to be specified) management did not
respond to his emails or denied his requests for equipment and/or assistance to
include additional supervisors;
10. On or around December 1, 2015, he became aware he was not selected for several
detail positions in Operations;
11. On or around December 4, 2015, he became aware he was not selected for a detail
Labor Specialist position;
12. On December 24, 2015, he was not paid properly for the extra hours worked;
13. On December 29, 2015, he was subjected to an Investigative Interview;
14. On December 31, 2015, he was issued a Letter of Warning;
15. On January 15, 2016, his request to issue discipline to his subordinate employees
was denied;
16. On January 20, 2016, he became aware he had not been selected for the EAS-24
Beechnut Manager position;
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17. On January 26, 2016, even though he scheduled an investigative interview for his
supervisors regarding an untimely Street Supervision report, he was subjected to an
investigative interview regarding the same matter;
18. Management continues to delay meeting with him and continues to procrastinate in
making final decisions on the disciplinary actions that have been issued;
19. On various dated to include March 1 & 5, 2016, his Manager ignored his request
for assistance;
20. On March 4, 2016, the Postmaster and CSOM-2 did not respond to his email request
for Upward Mobility opportunities;
21. On March 8, 2016, CSOM-3 denied his request for a lateral to the Manager of
Customer Service at the Roy Royal Station;
22. On March 14, 2016, he was notified he was not selected for the Manager Customer
Service, EAS-24 position at North Shepherd;
23. On March 15, 2016, he was notified he was not selected for the Manager
Del/Customer Service Programs, EAS-22;
24. On March 15, 2016, he was notified he was not selected for the Manager Post Office
Operations, EAS-25;
25. On March 17, 2016, his request for a cross training opportunity in Labor was
denied;
26. On March 17, 2016, he was notified he was not selected for the position of Manager
Customer Service EAS-24 at Beechnut;
27. On April 20, 20116, he was notified he was not selected for the position of Manager
Customer Service Operations EAS-23 Area 3 (posting #10010288);
28. On April 20, 2016, and other dates he was embarrassed and humiliated in front of
Senior Management during a SSI meeting by a Manager; and
29. On April 22, 2016, he was notified he was not selected for Operations Program
Specialist EAS-17.

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. 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 and harassment as alleged.

CONTENTIONS ON APPEAL

Complainant did not submit a brief on appeal.

The Agency requests that the FAD be affirmed as it articulated legitimate, nondiscriminatory
reasons for its actions, and, Complainant did not demonstrate that the reasons were pretext for
discrimination.

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The Agency also found that Complainant’s harassment claim failed, as the incidents complained
of were work related matters and were not severe or pervasive enough to establish a hostile work
environment.

ANALYSIS AND FINDINGS

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”).

Disparate treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record, we find that assuming, arguendo, Complainant
established a prima facie case of discrimination as to all of his protected bases, the Agency
articulated legitimate, nondiscriminatory reasons for each of the adverse actions set forth above.
We find that Complainant did not demonstrate that any conduct on the part of the Agency was
based on discriminatory animus, and there is no persuasive evidence in the record that Complainant
was subjected to discrimination. As we noted above, Complainant did not provide a statement on
appeal indicating why he disagreed with the Agency’s findings and conclusions in this case.

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With respect to the various claims of nonselection, the Agency fully explained why Complainant
was not selected for the various positions, and Complainant did not demonstrate that he was so
better qualified for the positions that discrimination could be inferred. The Agency also explained
that, contrary to Complainant’s belief otherwise, lateral transfers were not automatic. The Agency
indicated that an employee had to go through the bidding process for such a transfer, and that he
was not the successful bidder here.

With regard to the claims involving Complainant’s interactions with management, leave,
investigations, being downgraded, and being subjected to discipline, the Agency explained that
when Complainant did not show up for work and had not taken leave, management entered his
office and found 19 boxes of undelivered mail. Thereafter, an investigation was initiated and it
was determined that Complainant had violated Agency policy and had acted in an unbecoming
manner for a supervisor; consequently, he was demoted.

The Agency also explained that Complainant was issued a Letter of Warning because he repeatedly
failed to deliver Amazon items in a timely manner. Management indicated that they did not recall
Complainant ever requesting to place his supervisor off-duty for falsification of Express Mail
scanning labels. Further, there were also conversations with management regarding Complainant’s
desire to transfer to another location, his need for assistance and equipment, and various other
topics. We find no persuasive evidence that discriminatory animus played a role with respect to
management’s determinations.

Further, with respect to Complainant’s allegation that his supervisor made remarks regarding his
Mexican heritage and that she used vulgar language, an investigation was conducted and the
allegations were found not to be true. 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. With regard to his
claim of not being paid for the extra hours he worked, management explained that Complainant is
an exempt employee and therefore he was paid properly. We find that Complainant did not
demonstrate that the Agency’s actions were pretext for discrimination.

In sum, our review of the record confirms the Agency’s assertion that its decisions were based on
its determination of how best to effectively manage the workplace and its assessment of
Complainant’s performance and conduct in the workplace. Nothing in the record, demonstrates
that the actions by the Agency were motivated by discriminatory animus. The Commission has
long held that an Agency has broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by the reviewing authority absent evidence of unlawful
motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of
the Treasury, EEOC Request No. 05940906 (January 16, 1997).

With regard to Complainant’s allegation of discriminatory harassment, 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 must fail. See Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
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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).
Moreover, we find that the incidents identified were in the nature of common workplace
interactions and employment actions that occur between a supervisor and a subordinate employee
in the workplace. We agree with the Agency’s findings in the FAD that the incidents, considered
together and taken as a whole, do not rise to the level of a discriminatorily hostile workplace.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not show that he
was subjected to discrimination and/or harassment.

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

December 7, 2018
Date