George M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Apr 4, 2018

0120160831 (E.E.O.C. Apr. 4, 2018)

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

George M.,1
Complainant,

v.

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

Appeal No. 0120160831

Agency No. 66-000-0017-15

DECISION

On December 22, 2015, 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
November 23, 2015, 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. Our review is de novo. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postal Inspector at
the Agency’s Phoenix Inspection Service Division in Phoenix, Arizona.

On June 26, 2015, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him and subjected him to a hostile work environment on the basis of
reprisal for his prior protected EEO activity under Title VII when:

1. On September 19, 2014, December 18-19, 2014, and June 19, 2015, Complainant was
told his request to transfer to another team was denied;

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. Since filing his prior EEO complaint, Complainant has not been asked to be Acting
Team Leader for his current team, and he has been ignored by management for
promotional opportunities; and

3. In March 2015, Complainant was removed from the Phoenix Division’s Leadership
Development Program and his request to be involved in the new program was denied.

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 EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. With respect to claim (1), the Agency stated that Complainant claimed that he
submitted written transfer requests to the Assistant Inspector In Charge on September 19, 2014,
and June 19, 2015; a written transfer request to the Assistant Inspector In Charge and the
Inspector in Charge on December 18, 2014, and a verbal request for transfer to the Inspector In
Charge on December 19, 2014, and that the Inspector In Charge denied his requests.

According to Complainant, he met with the Inspector In Charge on several occasions to discuss
the hostile work environment on his team and that in February 2015, the Inspector In Charge told
him that he acknowledged the hostile work environment, did not know how to fix it, and would
move him to another team. Complainant stated that the Inspector In Charge informed him the
following week that there would not be any personnel changes due to lack of resources.
Complainant asserted that two personnel changes were announced the following day in the
Phoenix Division.

The Agency noted that Complainant’s prior complaint was filed on November 28, 2014, and it
named the Inspector In Charge and the Assistant Inspector In Charge as discriminating officials
under the purviews of race and color when Complainant was not selected for a Team Leader
position.

As for claim (2), Complainant claimed that his Supervisor/Team Leader was responsible for not
asking him to be Acting Team Leader for his current team. Complainant asserted that he made
several verbal and written requests to his Supervisor to be Acting Team Leader. According to
Complainant, he regularly served as Acting Team Leader since 2006, but that except for one
recent occasion, he has not served as Acting Team Leader since filing an EEO complaint.
Complainant maintained that he should have been asked to be Acting Team Leader because he
did an excellent job when previously serving in that position, he completed four Acting Team
Leader details and received an award for one of the details. The Agency noted that Complainant
was assigned to serve as Acting Team Leader from May 28, 2015 – June 5, 2015.

Complainant claimed that he was overlooked for promotional opportunities by the
aforementioned management officials. Complainant argued that he merited such opportunities
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based on his work, talent and skills, and these opportunities were afforded him throughout his
career until he filed an EEO complaint. Complainant maintained that he has received many
awards, led his division in arrests, conducted the last wiretapping investigation in the Phoenix
area, and is his division’s unofficial leader. According to Complainant, he believes his EEO
activity was a factor because the Assistant Inspector In Charge stated that he would never be
promoted due to his actions.

With regard to claim (3), Complainant asserted that the aforementioned management officials
and the Postal Inspector Team Leader were responsible for removing him from the old
Leadership Development Program (LEDP) and denying him reentry into the new Program.
Complainant stated that he was in the Program since it began in 2010. Complainant stated that
his Supervisor told him on April 10, 2015, that his entry into the new Program would not be
approved. The Supervisor did not recommend him for the new Program’s Choose to Lead track
and instead recommended that Complainant consider the Choose to Grow track. Complainant
noted that on May 13, 2015, the Program Committee, which was composed of the Assistant
Inspector In Charge and the Postal Inspector Team Leader, concurred with his Supervisor’s
decision. Complainant claimed that he should have been accepted into the new Program because
he performed at a high level, had been successful and has done everything that has ever been
asked of him. Complainant declined to pursue the Choose to Grow track as he stated that he did
not fit its criteria.

The Agency determined that Complainant set forth a prima facie case of reprisal as to claims (1)
and (3). With regard to claim (2), the Agency stated that Complainant and the record failed to
establish when those incidents occurred and therefore could not be considered timely for a prima
facie reprisal claim. As for the comparisons named by Complainant in claim (1), the Agency
denied that they were similarly situated to Complainant. Complainant stated that one
comparison was given a Team Leader detail in Tucson and the other comparison was moved to
the Fraud Team. In terms of the comparison who received the Tucson detail, the Agency noted
that the Inspector In Charge stated that he had not previously received a Team Leader detail, and
he was offered the opportunity as Complainant previously had two Team Leader details. The
Agency stated that the matter with this comparison did not involve a request to transfer to a team
as it did with Complainant. With regard to the other comparison cited by Complainant, the
Agency stated that he is not similarly situated because he did not make a request to be
transferred, but rather management moved him to the Fraud Team based on an investigation he
was working on.

The Inspector In Charge stated that an employee who requested a transfer was transferred to the
Fraud Team and was transferred at the beginning of the Fiscal Year 2015 because she was
performing at a satisfactory level, and unlike Complainant, she submitted a timely transfer
request from the previous year. The Inspector In Charge further named two employees who also
did not have their transfer requests approved.

The Agency determined that it articulated legitimate, non-discriminatory reasons for its denial of
Complainant’s transfer requests. The Inspector In Charge stated that he informed Complainant
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on December 20, 2014, that management would consider his transfer request, but no request
would be approved prior to March 30, 2015. According to the Inspector In Charge, after
discussing the matter with the Assistant Inspector In Charge, he told Complainant that he needed
to remain on his team due to a number of factors, specifically shortages. The Inspector In
Charge asserted that all inspectors serve and are assigned based on the needs of the Inspection
Service. The Assistant Inspector In Charge stated that transfer requests are only approved if
there is a valid operational need and the requesting Inspector is successfully performing his
current assignment. According to the Assistant Inspector In Charge, Complainant’s Supervisor
stated that Complainant was not working to his full capacity, and that even if they were able to
fill the vacancy on the Security Team, Complainant would have had to improve his performance
on the Narcotics Team to be considered. Complainant’s Supervisor acknowledged that he
recommended that Complainant remain on his current team until he was performing his duties.

As for claim (3), the Agency asserted that Complainant did not cite specific comparisons but
rather claimed that everyone from the old Program who applied to the new Program was
accepted and that nobody in the Phoenix Division was treated the way he was treated.
According to the Inspector In Charge, all employees who requested to be part of the LEDP,
including Complainant, were approved and selected for either the Choose to Lead or the Choose
to Grow track.

The Agency determined that it articulated legitimate, nondiscriminatory reasons for its actions in
claim (3). The Agency stated that the Inspector In Charge asserted that Complainant withdrew
from the LEDP and was not removed from it. The Inspector In Charge stated that Complainant’s
Supervisor denied Complainant’s request for the Choose to Lead track. The Supervisor asserted
that Complainant was not satisfactory in his current duties or his leadership tendencies.
According to the Supervisor, Complainant was informed during his mid-year evaluation in April
2015, that he was not fully performing in his current assignment as he had a difficult time with
management decisions, and has stated that he has no respect for several Inspectors on the team,
including the Supervisor/Team Leader. The Supervisor maintained that he told Complainant that
the Choose to Grow track would enable him to continue to work on his current assignment,
leadership tendencies in his current role, share information with peers in a team environment and
engage in collaboration. The Supervisor stated that the Selection Committee concurred with his
decision to recommend Complainant for the Choose to Grow track, but that Complainant
declined the offer in June 2015.

The Agency determined as to both claims (1) and (3) that Complainant failed to establish that its
explanations for its actions were pretext intended to hide discriminatory motivation. The Agency
stated that Complainant did not provide direct evidence to support his claims and there is no
indication from the evidence that management was motivated by any discriminatory animus.

The Agency determined as to Complainant’s harassment claim that as discussed above reprisal
was not involved in claims (1) and (3), and thus Complainant has failed to show that the
harassment complained of was based on his membership in the protected class. In terms of claim
(2), the Agency noted that the Supervisor stated that Complainant had a negative attitude about
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being on the Prohibited Mailing of Narcotics (PMN) Investigations team as he was negative
toward some teammates and with prior management. According to the Supervisor, during
meetings, Complainant would look down at his phone or the floor and not participate and he
appeared disengaged, showing little interest in his assignment. The Agency stated that the
Supervisor told Complainant that the reason he was not asked to be an Acting Team Leader is
because of his negative attitude and lack of production. The Supervisor asserted that
Complainant was named Acting Team Leader for a week in May 2015 after his attitude and
communication improved. As for Complainant not being afforded promotional opportunities,
the Supervisor asserted that he was not aware of any specific opportunities that interested
Complainant.

The Agency determined that Complainant failed to establish a prima facie case of harassment.
The Agency stated that there was insufficient severity and frequency of the alleged conduct and
there was no unreasonable interference with Complainant’s work performance. The Agency
reasoned that the vast majority of the alleged matters are those which concern the normal scope
and course of workplace relations and involve daily interactions between a supervisor and his
employees. The Agency further states that the record is devoid of evidence that management
singled Complainant out and treated him unfairly due to his protected EEO activity

CONTENTIONS ON APPEAL

On appeal, Complainant contends that his Supervisor created a hostile work environment. With
regard to the Leadership Employee Development Program, Complainant maintains that he did
not meet the criteria for the Choose to Grow track as that applied to those interested in non-
supervisory position. According to Complainant, he has had numerous conversations with the
Inspector In Charge, Assistant Inspector In Charge, and his Supervisor about being promoted to
the position of Team Leader. Complainant maintains that criticisms of his job performance are
contradicted by the fact that his request to transfer from the PMN Team to the Security Team
was granted on October 1, 2015. Complainant states that his “meeting objectives/expectations,
meets performance standards” evaluation for the relevant period illustrates that he was unjustly
denied entry into the Choose to Lead track. Complainant argues that he outperformed during
Fiscal Year 2015 most of the inspectors who were admitted into the LEDP. Complainant
disagrees with his Supervisor’s statement that he did not demonstrate leadership tendencies.
Complainant points out that he has had four Acting Team Leader details.

In response, the Agency asserts that Complainant did not establish a prima facie case of disparate
treatment as to his claims. The Agency maintains that Complainant’s prior EEO activity had no
effect on its decision making process. Further, the Agency argues that even if the actions
complained of are true, they are not sufficiently severe or pervasive to create a discriminatory
hostile or abusive working environment.

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ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that (1) he
engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3)
subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists
between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

We shall assume arguendo that Complainant set forth a prima facie case of reprisal with regard
to all three claims at issue in the complaint. The Agency put forth legitimate, nondiscriminatory
reasons for its actions. The Agency stated as to claim (1) that transfer requests are only approved
if there is a valid operational need and the requesting inspector is successfully performing in his
current assignment. According to the Assistant Inspector In Charge, Complainant’s Supervisor
stated that Complainant was not working to his full capacity, and that even if they were able to
fill the vacancy on the Security Team, Complainant would have had to improve his performance
on the Narcotics Team to be considered. With respect to claim (2), the Agency stated that the
Supervisor told Complainant that the reason he was not asked to be an Acting Team Leader is
because of his negative attitude and lack of production. As for Complainant not being afforded
promotional opportunities, the Supervisor asserted that he was not aware of any specific
opportunities that interested Complainant. With regard to claim (3), the Supervisor asserted that
Complainant was not satisfactory in his current duties or his leadership tendencies, and therefore
he denied Complainant’s request to enter the LEDP’s Choose to Lead track. We find that the
Agency has articulated legitimate, nondiscriminatory reasons for its actions as to each claim.

Complainant attempts to establish pretext by arguing that his job performance was better than
several Inspectors who received more favorable treatment. Complainant states that he has
received many awards, led his division in arrests, conducted the last wiretapping investigation in
the Phoenix area, and is his division’s unofficial leader.
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These arguments advanced by Complainant, however, do not necessarily refute the Agency’s
explanation that during the relevant period the Agency believed that Complainant was not
performing up to his capabilities, and that Complainant’s conduct at times during team meetings
was reflective of a negative attitude. In light of performance and attitude concerns, the Agency
decided not to grant his transfer requests and not to recommend Complainant for the Choose to
Lead track in the LEDP. We discern no persuasive evidence that Complainant’s prior EEO
activity was a factor in any of the alleged incidents. Further, in support of this conclusion, we
note that Complainant received an opportunity to serve as Acting Team Leader in May 2015
once the Agency officials thought that his attitude and communication began to improve.

Complainant also claims that he was subjected to harassment. To establish this 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 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 determining that a working environment is hostile, factors to
consider are the frequency of the alleged discriminatory conduct, its severity, whether it is
physically threatening or humiliating, and if it unreasonably interferes with an employee’s work
performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994).

With respect to Complainant’s harassment claim, we find that there is insufficient evidence that
any of the alleged incidents occurred as a result of Complainant’s prior EEO activity. We further
find that the cited incidents are discrete events that lack sufficient severity or pervasiveness to
constitute a hostile work environment.

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 decision finding that Complainant
failed to prove his claims of discrimination and retaliation as alleged.
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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.
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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 4, 2018
Date