Harlan P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

May 6, 2016

0120150194 (E.E.O.C. May. 6, 2016)

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

Harlan P.,1
Complainant,

v.

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

Appeal No. 0120150194

Hearing No. 471-2014-00105X

Agency No. 4J-481-0115-13

DECISION

The Commission accepts Complainant’s appeal from the September 15, 2014 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 Postal Support
Employee (PSE)/Mail Processing Clerk at the Agency’s Post Office in Jackson, Michigan.
Complainant had previously worked at another facility, but transferred back to the Jackson
Post Office in April 2013. After the first or second week back, Complainant claims that he
noticed that his supervisor (S1) was consistently assigning him to work at a place called the
“pouch rack” where the duties required a high amount of effort, but provided fewer working
hours. Thus, Complainant alleges that he was working harder, but getting paid for fewer
hours. In addition, Complainant claims that management has not allowed him to work seven to
eight hours per day as other employees are allowed, and that he was not allowed to work more
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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hours or special assignments. Complainant further alleges that S1 denied his requests for
scheme training on several occasions even though he was qualified to do scheme work.

On August 1, 2013, Complainant and another employee were called into the supervisor’s office
for a safety talk. The supervisor (S2) instructed the employees to wear leather safety shoes
unless they had medical documentation stating they could not wear safety shoes. Complainant
claims that he has flat feet and had been wearing running shoes for support. Complainant
admits that he did not have medical documentation stating he could not wear safety shoes;
however, he claims that days later he saw carriers wearing non-safety shoes.

Complainant believes that S2 assigned another employee to spy on him. Complainant claims
that the employee, S2’s cousin, followed him and reported everything he did to S2.
Complainant claims that he was sitting outside during his break in August when S2 and the
employee came outside and asked why he was sitting outside.

Beginning in June 2013, Complainant alleges that S2 made him go outside after all the carriers
had come back to ensure their Postal vehicles were closed. Complainant contends that this was
not his job and that on the days he did not check the vehicles, S2 did not allow him to stay for
extra hours.

On October 4, 2013, Complainant submitted a leave request slip (PS Form 3971) to S1 (who
was not his immediate supervisor at the time) requesting to be off on October 14, 2013.
Complainant claims that S1 never responded back. Complainant was not scheduled to work on
October 11 and 12, 2013, so he asked a co-worker to leave a note with S1 with his phone
number. Complainant alleges that when he returned to work on October 17, 2013, he was
given an investigative interview by S2 and another supervisor (S3) regarding why he did not
report for work on October 14, 2013.

On October 6, 2013, Complainant submitted a leave request to S2 for annual leave on October
15, 2013. Complainant claims that he explained to S2 that the day in question was a religious
holiday; however, she disapproved the request stating the leave quota for that day had been
met. Complainant asked that she reconsider, but S2 refused his request. Complainant reported
to work as scheduled and worked approximately four hours.

On November 10, 2013, Complainant was scheduled to work at 1:00 p.m. Complainant
claims that he was unable to find his time card when he arrived. Complainant states that he
then left the building to move his car close to the dock area to fix his flat tire. After fixing the
flat, Complainant claims that he entered the building and cleared some of the collection truck
drives from 2:00 p.m. to 6:45 p.m. Complainant contends that he completed a PS Form 1260
to report his work hours, and went home at 9:00 p.m. When he returned to work on
November 11, 2013, Complainant forgot to submit the form to S2, and eventually asked a co-
worker to submit it for him on November 14, 2013. S3 held an investigative interview with
Complainant when he returned on November 21, 2013, regarding discrepancies between his
badge swipes and his reported work hours. Based on the discrepancies, Complainant claims

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that S2 informed him that he would not be paid for the day; however, he subsequently was
paid for the day. On December 3, 2013, Complainant was called into S3’s office. S3 read
Complainant a letter informing him that he was being terminated for his failure to use his time
card and for not timely submitting his PS Form 1260. Additionally, management had
determined that Complainant was not truthful in his explanation for his actions. As a result,
Complainant was removed.

On July 20, 2013 (and twice amended), 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 (Caucasian), national origin (Jordanian), religion (Muslim), color (White), and in
reprisal for prior protected EEO activity when:

1. Beginning on April 15, 2013, he has not received equitable work hours;
2. On unspecified dates he has been denied scheme training;
3. On August 1, 2013, he was required to wear leather safety-type shoes, however,
other employees were allowed to wear non-safety-type shoes;
4. On and around August 24, 2013, and September 10, 2013, he was accused of
not obeying his supervisor's orders;
5. On unspecified date(s), a co-worker was assigned to spy on him;
6. On unspecified date(s) he was assigned to check the Postal vehicles every day
which is not his job;
7. He was given an Investigative Interview for not reporting to work on October
14, 2013, even though he had submitted a slip for Leave Without Pay (LWOP);
8. On November 21, 2013, he was subjected to an Investigative Interview and
accused of reporting inaccurate work hours on PS Form 1260;
9. His request for annual leave for a religious holiday on October 82, 2013, was
denied;
10. He was either not paid or his pay was delayed for November 10, 2013; and
11. On December 3, 2013, his employment was terminated.

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing;
however, the AJ assigned to the matter determined that Complainant’s request was untimely,
and remanded the complaint back to the Agency for issuance of a FAD.

In the FAD, the Agency determined that alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that
management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as
to claim (1), S1 affirmed Complainant was a PSE, and as such was not guaranteed 40 hours of
work like regular employees. S1 added that Complainant was given the same average number
of work hours as other PSEs, but that Complainant was responsible for some circumstances
that may have had the effect of reducing his hours such as when he requested his tour to begin
and failing Window Clerk training. S2 noted additionally that Complainant works reduced

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work hours because he has chosen to further his education. Regarding claim (2), S1 stated that
Complainant was not entitled to any scheme training as a non-regular employee, but in fact he
had the most scheme training out of all the PSEs under his supervision.

With respect to claims (3) and (4), S3 confirmed that all employees were instructed to wear
leather safety shoes based on national policy. S3 maintained that she gave the same safety talk
to all employees. The Postmaster confirmed that she instructed all of her supervisors to issue
safety talks regarding safe footwear. The Postmaster stated that she was informed that
Complainant had objected to the instructions, but he was informed that failure to follow safety
procedures could lead to an investigative interview.

As to claim (5), S2 flatly denied Complainant’s allegation that she assigned another employee
to spy on him. S2 stated without qualification that she gave no such instruction, and noted that
Complainant never informed her that he felt that another employee was spying on him.
Regarding claim (6), S2 acknowledged that she would assign Complainant to inspect Postal
vehicles as a means of giving him more work (and thus more pay) after he finished his regular
duties. S2 noted that Complainant eventually started checking the vehicles on his own without
being told to.

As to claim (7), S1 stated that Complainant was not scheduled to work on either Tour 1 or
Tour 2; therefore, he was not sure why Complainant would have submitted the leave form to
him as Tour 1 supervisor. Complainant was subsequently given an investigative interview to
inquire as to why he did not report to work on October 14, 2013, but was not disciplined.
Regarding claim (9), S2 affirmed that she was unaware that Complainant’s request for leave
was for a religious holiday. The request was denied due to the needs of the operation.

With respect to claims (8), (10), and (11), the Postmaster explained that Complainant was
removed because he falsified records which resulted in a loss of revenue for the Agency. She
noted that Complainant made an admission that he deliberately used postal time to conduct
non-postal business on postal property by repairing his tire. Further, the Postmaster stated that
that Complainant’s PS Form 1260 did not match the electronic records of his physical presence
in the workplace. As a result, Complainant was terminated after his supervisor held an
investigative interview with him and his union representative.

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 contends that there is sufficient evidence supporting his discrimination
and hostile work environment claims. Complainant claims that management continuously
harassed him and had an employee spy on him. Complainant contends that he has a good

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reputation with his co-workers and did not create problems. 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
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.

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. The
Commission finds 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.

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 claims (1) and (2), S1
affirmed that Complainant’s assignment to the pouch rack was no more detailed than other
assignments. ROI, at 272. Further, S1 stated that Complainant received the same number of
average hours as other PSEs, but Complainant declined additional opportunities for extra
hours. Id. S1 noted that Complainant received more scheme training than other clerks. Id.
Regarding claim (3), S2 stated that she informed all employees when they arrived at their
scheduled start times about the safety shoe foot protection policy. Id. at 296. S2 noted that
Complainant never provided any medical documentation stating that he could not wear safety
shoes. Id. S2 added that she could only speak for her tour, but she required all of her
employees to wear leather-type shoes for foot protection. Id. at 296-97.

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As to claim (4), the Postmaster stated that a supervisor reported to her that Complainant was
insubordinate and difficult to manage, specifically regarding the safety shoe issue. ROI, at
369. While Complainant was not disciplined for his resistance, the Postmaster noted that
employees may be given corrective action for failing to follow instructions. Id. at 367.
Regarding claim (5), S2 denied that she assigned anyone to spy on Complainant. Id. at 299.
With respect to claim (6), S2 affirmed that she assigned Complainant to check Postal vehicles
after he finished his assigned duties to fill the remainder of his shift when he had no work to
perform. Id. at 300. S2 noted that Complainant was not the only employee who performed
this task nor was it an assigned duty. Id.

Regarding claim (7), the record indicates that there was a miscommunication about the leave
slip which was resolved after the investigative interview by changing the leave from
unscheduled absence without leave to unscheduled leave without pay. ROI, at 517. As to
claim (9), S2 acknowledged that she received a leave request form from Complainant
requesting annual leave for October 15, 2013. Post-Investigation Documents, S2’s Aff., at 2.
S2 affirmed that Complainant did not indicate on the form or tell her that he needed the day off
for a religious holiday. Id. A review of the leave slip in question confirms that Complainant
did not initially indicate on the form that the leave was for a religious holiday observance. Id.
at Ex. 1. After checking her scheduling book, S2 realized that the quota for clerks on leave
for that tour had been reached; therefore, she disapproved the request. Id.

With regard to claims (8), (10), and (11), S3 stated that she conducted an investigative
interview with Complainant to investigate the possibility of inaccurate time recorded on his PS
Form 1260. ROI, at 338. Complainant was scheduled to report for work at 1:00 p.m. on
Sunday, November 10, 2013, but claimed he could not find his electronic badge to clock in.
Id. at 251. Complainant completed a PS Form 1260 indicating that he began his tour at 1:00
p.m. and left at 9:00 p.m., but did not give it to his supervisor until November 17, 2013. Id.
at 227. S2 determined that Complainant was not honest during his investigative interview as
the electronic badge reader indicated that Complainant used his badge to enter the building and
that he did not enter the building until 2:15 p.m. Id. at 251. Further, Complainant admitted
to fixing his car’s flat tire while he was on the clock. Id. As a result, S3 issued Complainant a
Notice of Removal for violating several policies including failing to discharge his duties,
failing to obey orders, failing to use his badge for clock rings, and falsifying his time card. Id.

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 Agency's
decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment as alleged.

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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 decision because the preponderance of the evidence of record 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
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

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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

May 6, 2016
Date