0120170613
09-11-2018
Fred S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Fred S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120170613
Agency No. 4G770012516
DECISION
On November 14, 2016, 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 October 21, 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., 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant established that he was harassed based on his race (Hispanic), national origin (Puerto Rican), sex (male), color (Brown), disability (hearing), and age (53).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Klein Station facility in Spring, Texas. On March 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment when:
1. since December 2015, and continuing, Complainant's supervisor stated he can "talk to Complainant any way he wants;"
2. On January 26, 2016, management accused him of not scanning a package;
3. On January 28, 2016, management told him to bring in documentation concerning his sister's funeral, and subsequently, after turning in the documentation, he was asked to produce the airline ticket;
4. On January 29, 2016, he was instructed to provide documentation for his requested absence;2 and
5. On February 22, 2016, he was issued a Letter of Warning.
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 (FAD) pursuant to 29 C.F.R. � 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant averred that on March 10, 2016, he was discussing his request for overtime with the Station Manager and a Supervisor when the Station Manager became angry and told Complainant that he could talk to him anyway he wants. Complainant took exception to being treated in that manner. The Agency stated that the Station Manager did not use any profanity, insults or opprobrious remarks or comments, and that he was simply determining if Complainant had properly scanned a package.
Complainant averred that on January 26, 2016, the Station Manager started pulling his packages out of his hamper and did not give him a chance to explain what was "going on with the particular package." Complainant alleged that the Station Manager asked him "what was going on with the package." Complainant replied, "you tell me, you are the one going." The Station Manager stated that the package was not scanned. Complainant disagreed because he "was not given an opportunity to defend himself and not shown on the computer where it said that the package was not scanned."
The Agency contends that this exchange was devoid of any acrimonious action that could result in an "injury in fact" to the Complainant, or substantially affect the work environment such that it would be considered unreasonable by a reasonable person.
Management told Complainant to bring in documentation concerning his sister's funeral. After turning in the requested documentation, Complainant was then asked to produce the airline ticket. Complainant asserted that he was not given a reason for the request.
The Agency contends that it requested a copy of the airline ticket because Complainant had stated to them that he was sick while he was being questioned about the package that may or may not have been scanned. Complainant advised his supervisor that he was going to be out on sick leave. While out on sick leave, Complainant attended his sister's funeral, resulting in being absent an additional three days. The Agency contends that Complainant did not show that he was harmed by the request to produce a copy of the plane ticket. The Agency reasoned that because Complainant attended his sister's funeral outside of the United States, and he had already bought the plane ticket, it was not onerous for him to provide a copy to management.
The record indicates that Complainant entered a grievance settlement that resulted in the rescission of Letters of Warning (LOW) dated February 11, 2016, February 20, 2016 and February 27, 2016. Complainant maintained, however, that his complaint concerned the February 11, 2016 LOW. The settlement states, in part, "The Letter of Warning issued to the grievant for Improper Conduct/Failure to Follow Instructions dated 02/11/2016 will be expunged, removed from all files and never mentioned again."
In its FAD, the Agency, at the outset, dismissed claim 5 because, due to the settlement, it was now moot. The Agency went on to find that the incidents about which Complainant complains were neither severe nor pervasive and did not rise to the level of being sufficiently severe or pervasive that it created a hostile, abusive or offensive work environment, or unreasonably interfered with the Complainant's work performance. The Agency also contends that the nature of the requests and interactions between the Manager and the Complainant "occupy the normal scope and course of industrial relations and partake of daily interactions" between a supervisor and employee.
CONTENTIONS ON APPEAL
Complainant submitted a statement pointing out, among other things, the family ordeal he faced, and that management acted with intimidation, unwanted and unwelcome words and actions. The Agency submitted a statement pointing out, in pertinent part, that Complainant failed to prove discrimination, and did not demonstrate that the legitimate, non-discriminatory reasons for the Agency's actions were a pretext for discrimination.
ANALYSIS AND FINDINGS
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").
Harassment
To establish a hostile work environment claim, 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 the 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 McCleod v. Social Sec. Admin., EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
We find that Complainant did not establish by a preponderance of the evidence that claims 1 - 5 were based on his alleged protected classes. Further, Complainant failed to show that the alleged harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or created an intimidating, hostile or offensive work environment. With respect to claims 2, 3 and 4, the Commission specifically finds that the requests by management were not unreasonable. The requests were typical of those asked regularly in a normal workplace. Complainant's reaction to those requests, no matter how personally or deeply felt to be intrusive or insulting, are not sufficient to meet the levels required under the discrimination laws. The requests by the Agency are well within the normal and allowable exchanges of information in the workplace. Likewise, with regard to claim 1, we note that the discrimination statutes are not civility codes and do not address rude or obnoxious behavior only discriminatory conduct.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we Affirm the Agency's FAD.
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.
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
__9/11/18________________
Date
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.
2 Claim 4, on January 29, 2016, appears to be a duplication of claim 3 on January 28, 2016.
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