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

Equal Employment Opportunity Commission

Oct 11, 2018

0120170912 (E.E.O.C. Oct. 11, 2018)

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

Elmer C.,1
Complainant,

v.

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

Appeal No. 0120170912

Agency Nos. 4G-780-0182-15; 4G-780-0050-16

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the November 23, 2016 final agency decision (FAD) concerning his
equal employment opportunity (EEO) complaints 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the FAD.

BACKGROUND

Agency No. 4G-780-0182-15

At the time of events giving rise to this complaint, Complainant worked as a City Carrier, CC-
02, at the Agency’s Post Office in Pecos, Texas. In January 2015, Complainant requested and
was approved for annual leave from June 15, 2015 to June 20, 2015. Complainant alleged that
on June 15, 2015, the Union Steward called him at home to ask why he was not at work.
Complainant stated that he told the Union Steward that he was on annual leave for the week.
The Union Steward later called Complainant back and asked if he had a copy of the leave
request.

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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Complainant requested to speak to his supervisor (S1) who told him that management did not
have a copy of the approved leave request. Complainant claimed that S1 told him that
management would charge him as absent without leave (AWOL) if he did not provide a copy of
the leave request. Complainant took the copy of the leave request and presented it to S1.
Complainant was not charged with AWOL.

On July 28, 2015, the Postmaster (Postmaster-1) told employees during a stand-up talk that
Spanish would no longer be spoken at the post office. Complainant stated that he asked
Postmaster-1 where in the manual it stated that Spanish was not allowed. Postmaster-1
responded, “in the big sign when you cross the border coming into the United States of America
it says America, English speaking only.” Complainant asserted that he asked Postmaster-1 if he
was joking and Postmaster-1 told him to settle down.

Complainant claimed that on August 12, 2015, the Officer-in-Charge (OIC-1) advised him that
he would work with Complainant to address his “unresolved situations.” Complainant alleged
that he repeatedly asked OIC-1 for assistance on these issues and that OIC-1 said they would
work on them together on August 29, 2015. Complainant stated that when he looked for OIC on
August 29, 2015, he had left the post office without assisting him.

On September 25, 2016, Complainant filed a formal complaint (Agency No. 4G-780-0182-15)
alleging that the Agency discriminated against him and subjected him to a hostile work
environment in reprisal for prior protected EEO activity when:

1. Management threatened to charge Complainant Absent Without Leave (AWOL);
2. On July 28, 2015, the Postmaster (Postmaster-1) said only English should be
spoken at work; and
3. On August 29, 2015, the Officer in Charge (OIC-1) told Complainant that he
would help him resolve his issues, but left before doing so.2

On October 15, 2015, the Agency dismissed the claims pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. Complainant appealed and, in Denis C. v. U.S. Postal Serv., EEOC
Appeal No. 0120160418 (Apr. 8, 2016), the Commission reversed the Agency’s dismissal as to
all claims except an additional claim regarding a workers’ compensation matter. The
Commission remanded the complaint for further processing.

2 Complainant indicated in portions of his pre-formal complaint submissions that he believed that
he had been subjected to discrimination on the basis of race/national origin (Hispanic).
Complainant did not include this basis in his formal complaint nor did he raise it in the previous
or instant appeals. Thus, the Commission will not address race/national origin as a basis of
discrimination herein.
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Agency No. 4G-780-0050-16

Complainant alleged that on December 15, 2015, he was instructed by the Postmaster
(Postmaser-2) to sign another PS Form 2240 (Pay, Leave, or Other Hours Adjustment Request)
that had been signed by the Officer-in-Charge (OIC-3). Complainant asked why he needed to
sign another form since he had signed a PS Form 2240 on November 14, 2015. Complainant
stated that he told Postmaster-2 that he would not sign the form until he was informed why he
had to repeatedly sign PS Form 2240s on the same issue. Complainant claimed that Postmaster-
2 and the Union Steward later informed him that the last PS Form 2240 had been incorrectly
completed by OIC-3. Complainant signed the form, but expressed that he believed that the
delays in processing the forms was retaliation.

Complainant stated that he requested and was approved for sick leave on November 24, 2015
and December 1, 2015, for doctor’s appointments. Complainant claimed that when he received
his paystubs on December 24, 2015, he discovered that he had been charged leave without pay
(LWOP) for the days in question because he had no sick leave available. Likewise, on January
4, 2016, Postmaster-2 denied Complainant’s request for annual leave for January 11, 2016
through January 16, 2016, because he had no available leave. Complainant believed that
management violated its own rules and policies regarding his leave requests.

On December 30, 2015, Complainant asked Postmaster-2 if OIC-3 had given him any
information regarding his reimbursement for a light bulb he had to purchase for his letter carrier
case on February 27, 2014. Complainant claimed that he had submitted paperwork for
reimbursement for the $9.24 light bulb on November 18, 2015. Complainant stated that
Postmaster-2 informed him that no one had advised him on the situation, so the situation
remained unresolved.

On February 25, 2016, Complainant filed a second formal complaint (Agency No. 4G-780-0050-
16) alleging that the Agency subjected him to discrimination and a hostile work environment on
the bases of disability and in reprisal for prior protected EEO activity when:

4. On December 14, 2015, Complainant was made to complete a PS Form 2240 after
he had already done so;
5. On December 24, 2015, Complainant was charged Leave Without Pay (LWOP)
instead of the requested Sick Leave;
6. On December 30, 2015, Complainant asked OIC about being reimbursed for a
light bulb he bought on February 27, 2014; and
7. On January 4, 2016, Complainant’s request for Annual Leave from January 11-
16, 2016 was disapproved.

The Agency dismissed several additional claims pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim and pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor
contact.
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On April 16, 2016, the Agency consolidated the two complaints for processing and accepted
several claims (claims (4) and (6)) previously dismissed as part of Complainant’s hostile work
environment claim.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's
request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to constitute a hostile work environment. Further, the Agency found that there was no
evidence that the conduct at issue was based on discriminatory or retaliatory animus. More
specifically, as to claim (1), management could not locate a copy of an approved leave form for
Complainant’s absence, they questioned Complainant about his absence, and advised
Complainant that, if there was not an approved leave form then his absence would be charged to
AWOL. Complainant was never charged AWOL after he produced a copy of the approved leave
form. With respect to claim (2), S1 confirmed that Postmaster-1 gave a speech in which he
stated that only English should be spoken at work; however, it was never executed. The Agency
noted that a management inquiry was conducted following the incident and Postmaster-1 was
later issued a proposed removal for his conduct.

Regarding claim (4), Complainant was asked to complete another PS Form 2240 after he had
already completed one to comply with instructions from the Dispute Resolution Team.
Management was attempting to process an agreed-upon pay adjustment and the prior PS Form
2240 had been completed incorrectly.

As to claims (5) and (7), Postmaster-2 charged Complainant’s absences on November 24, 2015
and December 1, 2015, to LWOP instead of sick leave because Complainant did not have
accrued sick leave to which the absence could be charged. Likewise, the Postmaster disapproved
Complainant’s request for annual leave for January 11, 2016 to January 16, 2016, because
Complainant did not have an accrued annual leave balance to which the absence could be
charged. Finally, regarding claim (6), Postmaster-2 had no knowledge about Complainant’s
entitlement to reimbursement for a light bulb purchased 22 months earlier because he was not the
Postmaster at the time.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. 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. On appeal, Complainant presents no new arguments, but includes numerous
documents already in the record.

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ANALYSIS AND FINDINGS

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 claim, 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 disability or prior protected EEO activity. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

The Commission notes that Complainant chose not to request a hearing; therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on his disability and prior protected EEO activity, management
officials subjected him to a hostile work environment. Complainant alleged several incidents of
what he believed to be discriminatory or retaliatory harassment. The Commission finds that
Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive to
create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. For example, as to claim (1), management informed
Complainant that he would be charged as AWOL because they could not locate an approved
leave form justifying his absence. ROI, at 161. Complainant produced the approved leave form
and was not charged AWOL. With respect to claim (2), there is no dispute that Complainant and
other employees were instructed by Postmaster-1 to not speak Spanish in the workplace. The
record reveals, however, that the instruction was short-lived and the effects were, therefore, quite
limited and immediately corrected. The record shows that when upper management officials
learned that the Postmaster had unilaterally instructed employees to not speak Spanish, the
Agency officials immediately rescinded the instruction and removed the Postmaster from the
facility.
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In addition, management officials reassured employees that the Agency did not condone or
support the Postmaster’s statement. Additionally, there is no evidence that Complainant or any
other employee was disciplined for speaking Spanish.3

Regarding claim (3), the record indicates that a management official did offer to assist
Complainant; however, a new Officer-in-Charge was assigned to the Pecos Post Office before
that official could assist Complainant. ROI, at 168. With respect to claim (4), Postmaster-2
confirmed that Complainant was asked to complete a new PS Form 2240 by the Dispute
Resolution Team to resolve a grievance. Id. at 209. OIC-3 explained that he was attempting to
make Complainant whole following a grievance and that he explained to Complainant and the
Union Steward what he was doing at the time to correct any wrong that Complainant had
experienced. Id. at 242.

As to claims (5) and (7), Postmaster-2 stated that he denied Complainant’s December 24, 2015
sick leave request and charged him LWOP because he had no available sick leave. ROI, at 212.
Postmaster-2 affirmed that he similarly denied Complainant’s January 2016 annual leave request
because he had no available annual leave. Id. at 219. Finally, regarding claim (6), the
management officials expressed that they were not at the facility at the time of Complainant’s
request for reimbursement and played no role in the matter. Id. at 179, 216.

The Commission finds that Complainant has not shown that he was subjected to a discriminatory
or retaliatory hostile work environment. Furthermore, to the extent that Complainant is alleging
disparate treatment with respect to his claims, the Commission finds that he has not shown that
the Agency’s reasons for its actions were a pretext for unlawful discrimination or reprisal.
Accordingly, the Commission finds that Complainant has not established that he was subjected
to discrimination, reprisal, or a hostile work environment as to all claims alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

3 The Commission notes that EEOC guidelines on English-only rules, found at 29 C.F.R. §
1606.7, state that an employer may require that employees speak English at certain times in the
workplace if the employer can show that the rule is justified by “business necessity” at those
times. 29 C.F.R. § 1606.7(b). See generally, EEOC Enforcement Guidance on National Origin
Discrimination, Directive No. 915.005, (Nov. 18, 2016).
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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. 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.

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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

October 11, 2018
Date