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

Equal Employment Opportunity Commission

Mar 18, 2016

0120140152 (E.E.O.C. Mar. 18, 2016)

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

Felton M.,1
Complainant,

v.

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

Appeal No. 0120140152

Agency No. 4B-110-0087-11

DECISION

The Commission accepts Complainant’s appeal from the September 4, 2013 final Agency
decision (FAD) 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. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Fort Hamilton Station in Brooklyn, New York. On December 26 and 27, 2010, the
city experienced a major snowstorm and the mail trucks could not make it to the station. As a
result, on December 29, 2010, Complainant had to deliver three days of mail due to the mail
backup. Complainant returned to the station later than scheduled at around 7:20 p.m. and did
not inform management that he could not finish his route on time. During a pre-disciplinary
interview, Complainant stated “I’m not waiting on the supervisor to pick up the phone.”
Employees had been notified to inform management if they could not timely finish their
assignment. As a result, Complainant’s supervisor (S1) issued Complainant a Letter of
Warning for Failure to Follow Instructions. Complainant alleges that another snowstorm
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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struck the city on January 27, 2011, and that other carriers returned later than 7:00 p.m. and
were not disciplined.

On February 22, 2011, Complainant claims that his supervisor (S1) instructed him to do a one-
hour pivot on Route 6, and asked if he could come back at 5:00 p.m. Complainant indicated
that he could not return by 5:00 p.m. because delivery point sequence mail was heavy that day.
S1 attempted to cut one pivot in half to ensure Complainant could return by 5:00 p.m. When
Complainant returned, he alleges that other carriers returned later than he did making him
believe that the time constraints against him were unfair and discriminatory.

On February 24, 2011, Complainant again failed to notify management that he could not finish
his route on time and returned to the station two hours after his scheduled end of tour.
Management conducted a pre-disciplinary interview with Complainant and determined that he
failed to give an acceptable explanation for his actions. As a result, Complainant’s manager
(M1) issued Complainant a Notice of Seven-Day Suspension for Failure to Follow Instructions.

On June 20, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(Asian/Chinese), national origin (American), and in reprisal for prior protected EEO activity
as evidenced by multiple incidents including, inter alia, management imposed a harsher
schedule, more stringent time constraints, and more reporting requirements on him than on
other carriers; on January 6, 2011, he was issued a Letter of Warning for Failure to Follow
Instructions; and on March 4, 2011, he was issued a Seven-Day Suspension for Failure to
Follow Instructions.

The Agency initially accepted Complainant’s claim regarding the Seven-Day Suspension and
dismissed the Letter of Warning claim as untimely raised with an EEO Counselor. The
Agency investigated the accepted claim, and Complainant timely requested a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ assigned to
the matter dismissed the complaint as moot reasoning that a grievance settlement agreement
rendered the issues moot. The AJ did not address the Agency’s dismissal of the Letter of
Warning claim. The Agency subsequently issued a final order fully implementing the AJ’s
dismissal. Complainant appealed and, in Complainant v. U.S. Postal Serv., EEOC Appeal
No. 0120122294 (Mar. 20, 2013), the Commission reversed the Agency’s final order and
remanded Complainant’s full hostile work environment claim for further processing.

At the conclusion of the investigation of the remanded hostile work environment claim,
Complainant was provided with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an 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 not sufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that
management had articulated legitimate, nondiscriminatory reasons for its actions. Specifically,

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regarding Complainant’s claims of unfair time restraints and discipline, S1 explained that the
problem was not just that Complainant was returning to the station late; rather, Complainant
failed to follow instructions by not getting approval in the morning with a Form 3996 for
taking overtime, or not calling while on his route and getting approval. S1 declared that other
carriers called in yet Complainant did not, which was a failure to follow instructions. S1
commented that management cannot get the mail delivered if they do not know who needs
help.

With respect to the January 6, 2011 Letter of Warning, S1 stated that Complainant failed to
return on time, which would have been acceptable if he had followed instructions to get
approval in the morning with a Form 3996 or if he had called while on his route to get
approval. Complainant failed to call management, which was considered failure to follow
instructions. S1 noted that during the pre-disciplinary interview Complainant commented “I’m
not waiting for the supervisor to pick up the phone” and did not seem to care about following
instructions. As a result, S1 issued Complainant the Letter of Warning.

As to the Seven-Day Suspension, M1 affirmed that on February 24, 2011, Complainant again
failed to inform management that he would be unable to finish his assignment on time and end
his tour at 5 p.m. During the pre-disciplinary interview, Complainant had no response as to
why he failed to notify management with a Form 3996 in the morning or call the station to let
them know he would not be back on time. As a result, M1 issued Complainant the Notice of
Seven-Day Suspension.

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.

CONTENTIONS ON APPEAL

On appeal, Complainant claims that he was disciplined for returning to the station late while
other carriers were not. Complainant alleges that management harassed him based on his race
and national origin. Accordingly, Complainant requests that the Commission reverse the
FAD.

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

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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 a protected basis. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after 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 protected classes, management subjected him to a
hostile work environment based on several incidents where Agency officials took actions that
seemed adverse or disruptive to him. The Commission concludes that Complainant failed to
show that he was subjected to a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or
retaliatory animus played a role in any of the Agency's actions. The record reflects that the
alleged incidents were more likely the result of routine supervision, managerial discipline,
personality conflicts, and general workplace disputes and tribulations. Agency management
officials explained that Complainant was disciplined on the dates in question based on his
failure to follow instructions by failing to get approval in the morning to take overtime or
calling while out on the route to inform management that he would not be able to deliver his
entire route before the end of his tour. ROI, at 69, 101, 206. Management officials confirmed
that other carriers followed the proper procedures while Complainant failed to do so. Id. at
210. S1 noted that Complainant’s failure to follow instructions negatively affected the facility
because management cannot ensure the mail gets delivered if they do not know who needs
help. Id.

The Commission finds that Complainant has not proffered any evidence showing that the
Agency's explanation was a pretext for discrimination or reprisal. As a result, the
Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment as 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

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

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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

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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

March 18, 2016
Date