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

Equal Employment Opportunity Commission

Aug 28, 2019

2019000905 (E.E.O.C. Aug. 28, 2019)

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

Erik S.,1
Complainant,

v.

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

Appeal No. 2019000905

Agency No. 4G-770-0070-15

DECISION

On September 21, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 17, 2018 final decision concerning his equal employment opportunity
(EEO) complaint claiming employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a City Carrier at the Agency’s Port Arthur,
Texas Post Office.

On February 10, 2015, Complainant filed a formal complaint. Complainant claimed that he was
subjected to harassment/a hostile work environment based on race (African-American), sex
(male), disability, age (over 40), and in reprisal for prior EEO activity when:

1. from December 13, 2014 and continuing, his route has not been properly adjusted
resulting in the constant threat of losing his job; and

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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2. on January 30, 2015, he received a Notice of 14-Day No Time Off Suspension for
Unsatisfactory Safety Performance.

After the investigation of the formal complaint, the Agency provided Complainant with a copy
of the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing. The AJ, however, issued
a revised order dated October 10, 2015, dismissing Complainant’s hearing request for failure to
follow her orders. The record reflects that on December 10, 2015, Complainant filed a Motion to
Dismiss without Prejudice to Refiling at a Later Date because he was off duty under the Office
of Worker’s Compensation Programs (OWCP) and his return to duty date was unknown. The AJ
granted Complainant’s motion and his hearing request was dismissed with prejudice. In her
order, the AJ informed Complainant that if he sought to reinstate his hearing request, he must
submit a written request to the EEOC Houston Hearings District Office no later than 30 days
after receipt of OWCP return to duty notice.

On July 24, 2018, the Agency filed a Motion to Dismiss with Prejudice requesting dismissal on
the grounds that Complainant did not submit a written request to reinstate his hearing request
within 30 days after receipt of OWCP’s return to duty notice, as required by the AJ’s December
10, 2015 Order. Thereafter, the AJ granted the Agency’s motion and instructed the Agency to
proceed to issue a final decision. Consequently, the Agency issued the instant final decision on
August 17, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.2

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978).3 The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

2 Complainant identified his disabilities as arthritis, depression, and stress. For purposes of this
analysis, we assume, without so finding, that Complainant was an individual with a disability.

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This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

Regarding claim 1, Complainant asserted that from December 13, 2014 and continuing, his route
has not been properly adjusted resulting in the constant threat of losing his job.

The Postmaster (African-American male, year of birth 1957, unknown disability/prior protected
activity) explained that routes are adjusted by the Houston District Operation Programs Support
Department and he has no participation in such adjustments.

Complainant asserted that even though he was the carrier of record when the route inspection
was performed for his route, the route was not adjusted to him and he disagreed with the results.
The Postmaster stated, however, that Complainant’s route was adjusted in April 2014. He noted
that Complainant claimed the route was over 2 hours long and representatives from the Houston
District Programs Support Department “came back out in November of 2014 and adjusted the
route again.” The Postmaster stated that according to the records, Complainant’s route was
adjusted to 8 hours.

Regarding claim 2, Complainant alleged that on January 30, 2015, he received a Notice of 14-
Day No Time Off Suspension for Unsatisfactory Safety Performance.

The Supervisor Customer Service (“Supervisor”) (African-American female, year of birth 1966,
unknown disability/prior protected activity) was the deciding official to issue Complainant a
Notice of 14-Day No Time Off Suspension for Unsatisfactory Safety Performance. Specifically,
the Supervisor stated that on January 6, 2014, Complainant was involved in a preventable
industrial accident.

The record contains a copy of the January 30, 2015 Notice of 14-Day No Time Off Suspension.
Therein, the Supervisor noted at that time Complainant was dismounting his mail at a certain
location. As Complainant was getting out of his postal vehicle, he tripped “on the curb and fell
(injuring his back, neck, and shoulders). You were dismounting on a park & loop route. Yo[u]
have been instructed not to dismount on park and loop deliveries, not to park on a curb, watch
your steps on surrounding areas of uneven ground and concrete.”
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Further, the Supervisor determined that Complainant violated Sections 665.13 “Discharge of
Duties” and 814.2 “Responsibilities” of the Employee and Labor Relations Manual. The
Supervisor informed Complainant that she hoped this suspension “will serve to impress upon
you the seriousness of your actions and that future corrective action will not be necessary.”
Finally, the Supervisor stated that she did not discriminated against Complainant based on his
race, sex, disability, age and prior protected activity.

The Postmaster was the concurring official concerning the 14-day suspension. The Postmaster
stated that Complainant’s race, sex, disability, age and prior protected activity were not factors in
management’s decision to issue him a Notice of 14-Day No Time off Suspension.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.

Harassment

With regard to Complainant’s claim of ongoing discriminatory harassment, 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. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982).

In other words, 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 a protected bases – in this case, because of his race, sex,
disability, age and prior protected activity. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself. As already
determined, the evidence of record simply provides no support for Complainant’s allegation that
his race, sex, disability, age and prior protected activity played any role in the disputed Agency
actions.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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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

August 28, 2019
Date