Florentino S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Apr 28, 2016

0120140526 (E.E.O.C. Apr. 28, 2016)

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

Florentino S.,1
Complainant,

v.

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

Appeal No. 0120140526

Hearing Nos. 430-2012-00232X; 430-2012-00122X

Agency Nos. 4K-230-0001-12; 4K-230-0169-12

DECISION

The Commission accepts Complainant’s appeal from the Agency’s November 8, 2013 final
order 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at
the Agency’s Post Office in Ivor, Virginia. On March 31, 2007, Complainant was informed
that he would have to deliver to the White Tail Resort, a nudist park. The park is gated with
mailboxes outside of the fenced-in property. Prior to October 2007, Complainant would need
to use the resort buzzer and intercom system at the resort office to leave large packages or
packages requiring a signature. Complainant disliked going inside the gated area and the
Agency subsequently changed the policy and large packages and items requiring signature were
left at the Post Office and the carrier would leave a notice in the customer’s mailbox.
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 claims that when he complained about delivering packages at White Tail Resort,
the Postmaster laughed and made a joke about giving him dark glasses.

In October 2011, the Postmaster responded to Complainant’s concerns about a nude resident at
the White Tail Resort. The Postmaster instructed Complainant that if any customers from the
White Tail Resort came out without any clothes on while he was delivering mail to the
mailboxes, he could drive off; call the Sheriff’s Office to report the incident; and to contact her
so that she could investigate. Complainant believed that these special instructions were
retaliation and still subjected him to offensive work conditions.

In July 2011, mail volume was down for the facility; therefore, the Postmaster informed
carriers that there was no reason that all mail could not be taken out, except for Mondays and
holidays. Further, in January 2012, the Postmaster was informed at a district meeting that all
mail that arrived sorted at the office was to be delivered the same day. However, if mail
arrived strapped, bundled, shrink-wrapped, or in stacks, it could be held over until the next
day. The Postmaster informed carriers of these instructions. On or around January 12, 2012,
Complainant interpreted her instructions differently and believed that all mail had to go out.
As a result, Complainant was late getting out on his route and returned to the office after dark.
When the Postmaster questioned Complainant why he was so late, Complainant responded that
she had told him that all mail had to go out, including mail that had arrived strapped and
sacked that day. The Postmaster informed Complainant that the strapped mail had a two-day
window for delivery and could have waited until the next day. The Postmaster advised
Complainant not to do it again.

Between October 2011 and February 2012, Complainant accumulated multiple incidents of
misdelivered mail on his route. The Postmaster gave Complainant numerous verbal warnings
about misdelivering mail and attempted to correct his conduct. The Postmaster received
notification that Complainant again misdelivered mail in February 2012, but did not give
Complainant a verbal warning, but stressed to him to check all mail before delivering it to
mailboxes.

In July 2012, the White Tail Resort management reported to the Postmaster that their carrier
(Complainant) had misdelivered 2 letters. Complainant had accumulated approximately ten
misdeliveries at this point, and the Postmaster consulted with Labor Relations regarding the
matter. Labor Relations advised the Postmaster to take progressive discipline. The Postmaster
conducted a pre-disciplinary interview with Complainant on July 27, 2011. Subsequently, the
Postmaster issued Complainant a Letter of Warning. Complainant filed a grievance and the
matter was settled with the agreement that the Letter of Warning would remain in
Complainant’s file for six months.

On July 5, 2012, Complainant claimed that he was exposed to naked residents at the White
Tail Resort and wrote “naked people” in the remarks section of his trip report. The
Postmaster attempted several times to talk to Complainant about it, but Complainant refused.
Complainant provided a written statement the next day about the incident. The Postmaster

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reviewed surveillance video of Complainant delivering to the resort, but found that no one
appeared to come outside of the gated area.

On July 10, 2012, Complainant, the Union Steward, the Postmaster, and the White Tail Resort
Manager participated in a meeting to discuss an alternate site for the mailboxes outside of the
resort. The Resort Manager became upset with Complainant and talked loudly at him until the
Postmaster calmed him down. The Postmaster reassured the Resort Manager that the new
location for the mailboxes would resolve any issues.

On August 28, 2012, the Postmaster spoke with Complainant and a co-worker regarding lunch
breaks. The Postmaster advised the carriers that they needed to accurately record their lunch
breaks, that any deviation from the line of travel must be approved in advance, and that she
would not approve any deviation that was unsafe. The Postmaster stated that she witnessed
Complainant deviate from his route and make two left turns on a four-lane highway to get gas
without prior approval. The Postmaster advised Complainant that if he deviated from his
official line of travel for lunch without prior approval, he would be considered off the clock
and would not be covered by the Agency should anything happen.

On August 27, 2012, Complainant told the Postmaster that he could not deliver to 16 boxes
because the road was closed due to high water. The Postmaster reported the non-delivery to
the Manager (M1) before closing out. A customer called the Post Office to ask if the mail was
being delivered because she was expecting medication and there was no water on the road.
M1 asked the Postmaster to check the road and make the delivery. With the assistance of her
son, the Postmaster drove the route at issue and saw the “Caution High Water” signs posted on
some of the roads. Nonetheless, the Postmaster and her son drove with caution and made the
delivery and several others where the roads were passable. The next day, the Postmaster
informed Complainant about where he could safely deliver.

On December 27, 2011 (and amended on January 16, 2012), Complainant filed a formal
complaint (Agency No. 4K-230-0001-12) alleging that the Agency discriminated against him
and subjected him to a hostile work environment on the bases of sex (male), religion
(Methodist), and in reprisal for prior protected EEO activity when:

1. Beginning on or about March 31, 2007, and continuing, he has had to work in a
hostile work environment by having to deliver mail to a nudist resort;
2. On or about December 1, 2011, he was given special instructions on what to do if
they came out again while he was delivering mail;
3. On January 12, 2012, his supervisor informed him that all the mail had to go out.
When he returned late because of the mail volume, he was threatened with being
written up;
4. On several dates, he was threatened that he would be written up if he misdelivered
one piece of mail; and
5. On several dates, Complainant was threatened with being written up if he went over
the evaluated route time.

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On August 28, 2012, Complainant filed a second EEO complaint (Agency No. 4K-230-0169-
12) alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of sex (male), religion (Methodist), and in reprisal for prior
protected EEO activity when:

6. On July 3, 2012, he was accused of misdelivering mail at the White Tail Nudist
Park;
7. On July 5, 2012, he was exposed to naked individuals at the White Tail Nudist
Park, and when he informed management, he was told to keep delivering mail as
instructed;
8. On July 6, 2012, he was yelled at by postal customers during a conference at the
White Tail Park and management failed to resolve the conflict;
9. On July 6, 2012, he was given a Pre-Disciplinary Investigation, and subsequently
on July 27, 2012, issued a Letter of Warning for Improper Conduct or Failure to
Follow Instructions (misdelivery of mail);
10. On August 28, 2012, he was instructed that he was no longer authorized to stop for
lunch at the only store that is on his route; and
11. On August 28, 2012, he was instructed to drive past a "Road Closed, High Water"
sign and deliver mail.

At the conclusion of the investigation, the Agency provided Complainant with copies of the
reports of investigation (ROI-1 and ROI-2) and notice of his right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
timely requested a hearing. The AJ consolidated the two complaints, granted summary
judgment in favor of the Agency, and issued a decision on October 23, 2013.

In the decision, as an initial matter, the AJ dismissed claim (1) as an untimely discrete act.
The AJ noted, however, the claim would be considered as background evidence for
Complainant’s hostile work environment claim. Next, the AJ determined that the alleged
incidents were not sufficiently severe or pervasive to establish a hostile work environment.
Further, the AJ found that there was no evidence that the alleged incidents were based on
discriminatory or retaliatory animus. Furthermore, the AJ found that Complainant failed to
show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that
Complainant had not been subjected to discrimination, reprisal, or a hostile work environment
as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in finding that he was not subjected to a
hostile work environment. Complainant claims that he has been forced to deliver mail to the
nudist resort since 2007, and the Agency did nothing about his complaints. Complainant

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alleges that the Agency retaliated against him after he appeared on a local television news
report complaining about the hostile work environment. Additionally, Complainant claims the
Postmaster constantly harassed him by falsely accusing him of misdelivering mail and going
over his allotted time. Accordingly, Complainant requests that the Commission reverse the
final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

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

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on his protected classes,
he was discriminated against and subjected to a hostile work environment as evidenced by
multiple incidents. Construing the evidence in the light most favorable to Complainant, the
Commission agrees with the AJ that Complainant has not shown he was subjected to a hostile
work environment. 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.

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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, with respect to Complainant’s claims about
the White Tail Resort, the Postmaster confirmed that she changed the Agency’s policy and
carriers no longer delivered mail inside the gated area. ROI-1, at 168. Further, after
Complainant raised additional concerns to her about the residents, she contacted the Resort
Manager and he sent a letter to all residents advising them to not go outside the gated areas
unless they were clothed. Id. The Postmaster warned the resort that their mail would be
curtailed if any future incidents occurred. Id. at 168-69. Additionally, the Postmaster
instructed Complainant to pull away from the mailboxes, call the Sheriff’s Office, and contact
her if a resident came outside the gated area. Id. at 171. Subsequently, Agency management,
Complainant, and the Resort Manager met to discuss moving the mailboxes. While the Resort
Manager was upset with Complainant, the Postmaster calmed the situation down by reassuring
the Resort Manager that the alternate site would be acceptable. ROI-2 at 107-08. The boxes
were later moved and Complainant has presented no evidence that any similar incidents have
recurred.

With respect to his claims that he was given instructions that all mail needed to go out, the
Postmaster explained that Complainant and another carrier misinterpreted her instructions.
ROI-1, at 172. The Postmaster stated that she advised carriers that mail sorted at the office
was to be delivered that same day while mail that arrived strapped, bundled, shrink-wrapped,
or in stacks could be held over until the next day. Id. Complainant cased strapped mail which
resulted in him leaving the office two hours late and returning later than his allotted time. Id.
at 172-73. The Postmaster clarified her instructions to Complainant. Id. at 173. As to his
claims related to misdeliveries, the Postmaster affirmed that Complainant accumulated multiple
instances of misdelivered mail from October 2011 through February 2012. Id. at 174. The
Postmaster maintained that she gave Complainant verbal warnings and stressed to him to check
all mail prior to delivering to the mailboxes. Id. Complainant continued to accumulate
misdeliveries, including two at the White Tail Resort in July 2012. ROI-2, at 100. After
recording the 10th misdelivery, the Postmaster consulted with Labor Relations and ultimately
issued Complainant a Letter of Warning. Id. at 100-01.

As to the Postmaster’s instructions about lunch, the Postmaster confirmed that she simply
instructed Complainant that she would not approve him making two left turns on a four-lane
highway to get gas during his lunch break as it was an unsafe deviation. ROI-2, at 109. The
Postmaster noted that the gas station in question was one of three places where Complainant
could stop for lunch and the other two locations would not require a deviation off the route.
Id. Finally, with respect to delivery during inclement weather, the Postmaster stated that she
inspected the roads that Complainant stated he could not deliver, and advised him the next day
of what streets and boxes that he could deliver to safely. Id. at 112. The Postmaster added
that local traffic could access the roads, UPS and FedEx drivers were also making deliveries
past the road signs on certain roads, and that carriers were expected to make every reasonable
effort to serve customers on the route. Id. at 111-12.

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Finally, to the extent that Complainant is alleging disparate treatment with respect to his
claims, the Commission finds that Complainant has not proffered any evidence from which a
reasonable fact finder could conclude that the Agency's explanation was a pretext for
discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's
summary judgment decision finding 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
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 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

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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

April 28, 2016
Date