0120162278
10-19-2016
Harry E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harry E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120162278
Hearing No. 531-2015-00084X
Agency No. 1K-200-0108-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 1, 2016 final action concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Labor Relations Specialist at the Agency's Capital District Labor Relations Office in Washington, D.C.2
On September 6, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of sex (male) and disability when3:
1. on June 17, 19, and 20, 2013, his acting supervisor instructed him to conduct an inventory of all of the files in his office, cancel his meetings, and disregard his arbitration preparation;
2. on June 20, 2013, his acting manager acted in a hostile and degrading fashion when he found Complainant in his office and accused him of not following his instructions;
3. he was assigned to the 207 area prior to July 17, 2013, and on July 22, 2013, he was also assigned to the 206 area when he asked the acting manager to give him the instruction in writing, his request was refused;
4. on July 25, 2013, he found out that his co-worker (CW) had been domiciled to a different facility and the workload was disseminated disparately;
5. on July 29, 2013, CW said she wanted his assignment; and
6. on July 29, 2013, CW was assigned as the Acting Manager of Labor Relations and told him she was in charge of Labor Relations and the union could not help him.
After an investigation of the claims, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On April 26, 2016, the AJ conducted a hearing. The next day, on April 27, 2016, the AJ ceased conducting the hearing and issued a bench decision, finding no discrimination.
In his bench decision, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant began working for the Agency in 2007 or 2008 as a Labor Relations (LR) Specialist. Throughout his time working for the Capital District Labor Relations Office, Complainant did not work eight hours per day as a Labor Relations Specialist. Rather, the LR Specialists sometimes entailed working 10 or 12 hour days and sometimes entailed meeting with union representatives or management officials in the middle of the night.
During the summer of 2013, a named LR Specialist in the Capital Metro Area Office served in a detail as Acting Manager of the Capital District Labor Relations Office and was Complainant's acting supervisor. In September 2013, the Acting Manager left his detail in the Capital District Labor Relations Office, and CW began serving as Acting Manager of the Capital District Labor Relations Office. CW had some previous experience as Acting Manager.
The AJ noted in regard to claim 1, the former Acting Manager instructed all LR Specialists in the Capital District Labor Relations Office, including Complainant, to conduct an inventory of all of the grievance files in their offices and give files that were not assigned Grievance Arbitration Tracking (GATS) numbers to a named employee in order to input them into the GATS electronic system. The former Acting Manager also instructed Complainant to cancel all of his Step grievance meetings and focus on an inventory of the grievance files.
Further, the AJ noted that at the same time, the former Acting Manager instructed all of the LR Specialists to cancel their meetings in order to focus on an inventory of the files. The AJ noted while the former Acting Manager prevented Complainant from working on an upcoming arbitration, Complainant worked on the arbitration after hours at home. The AJ stated "this was not unusual since [Complainant] often had to work up to twelve or more hours some days. He sometimes had to attend grievance meetings during the middle of the night, like at 2 a.m. This did not mean that he worked 24/7, but his hours were flexible and he prepared appropriately for the arbitration and the results were unremarkable, since he has no recollection as to what happened."
Regarding claim 2, Complainant alleged that on June 20, 2013, the former Acting Manager accused him in a hostile and degrading fashion of not following his instructions regarding inventorying the files in the LR office. The record reflects when asked in his affidavit why he believed his sex was a factor in the former Acting Manager's talking to him in a degrading and hostile fashion, Complainant responded "N/A." The AJ noted that in his affidavit, the former Acting Manager stated that on June 20, 2013, he informed Complainant that he had not followed his instructions when the Acting Manager had instructed him to remove the files from his office. The former Acting Supervisor further denied subjecting Complainant to harassment when giving him instructions regarding the inventory of the files.
Regarding claim 3, the AJ noted that the primary indicator of a LR Specialist's workload is the number of grievances the LR Specialist has in that person's assigned area. The number of employees working at a facility assigned to a LR Specialist and the geographic territory assigned to a LR Specialist are not accurate indicators of a LR Specialist's workload, because those factors do not indicate how many grievances the LR Specialist is handling.
Complainant alleged that before mid-July 2013, he was assigned to represent the Agency in grievances originating from the 207 area and the Washington Network Distribution Center (NDC) whereas CW was assigned to handle grievances originating from the Southern Maryland Processing and Distribution Center (P&DC) and the 206 area. Complainant stated that sometime during July 2013, the former acting supervisor took the 206 area away from CW and reassigned it to Complainant, thereby making Complainant now responsible for the 206 and 207 areas, as well as the Washington NDC. In contrast, CW was only responsible for grievances originating from Southern Maryland P&DC.
The AJ noted that a review of the spreadsheet of data from the GATS ASR system, an electronic system the Agency uses to create reports of grievance related data and the former acting supervisor's declaration, the number of grievances received by the Capital District Labor Relations Office originating from the 206 area was 35. The AJ further noted that from June 2013 through July 2013, the number of grievances received by the Capital District Labor Relations Office originating from the 207 area was 34 and the number of grievances from the Washington NCD was 25.
Further, the AJ noted that from June 2013 to July 2013, the number of grievances received by the Capital District Labor Relations Office originating from Southern Maryland P&DC was 196. Prior to the former Acting Manager's reassignment of the 206 area to Complainant, CW was handling the grievances from the Southern Maryland P&DC and the 206 area which totaled 231 grievances, whereas Complainant was handling the grievances from the Washington NDC and the 207 area which totaled 59 grievances.
The AJ noted that during July 2013, the former Acting Manager reassigned to Complainant the 206 area for a more even distribution of the workloads, based on the number of grievances that Complainant and CW were each handling. Furthermore, the AJ noted that in his affidavit, the former Acting Manager stated that he was under no obligation to give instructions to Complainant in writing since he had already verbally instructed Complainant what his assigned areas were.
Regarding claim 4, the AJ determined that this claim concerns Complainant's allegation that the former Acting Manager changed CW's domicile from the JCTM LR office to the Southern Maryland P&DC. The AJ found that Complainant had no evidence to support his assertions. The AJ noted while CW's domicile never changed, CW stated that sometimes she commuted directly to Southern Maryland P&DC because she had meetings with union representatives due to the high volume of cases assigned to her.
Regarding claim 5, CW acknowledged telling Complainant on July 29, 2013, that she wanted his assignment. Specifically, CW stated that because Complainant complained about his workload, she offered to switch with him. The AJ determined that at that time, Complainant still had significantly fewer cases assigned to him than to CW.
Regarding claim 6, CW denied telling Complainant on September 3, 2013, that she was in charge of LR and the union could not help him.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
As a threshold matter, we note that Complainant argued that the AJ erred when he stopped the April 27, 2016 hearing because he did not have an opportunity to present his evidence in its entirety and cross examine witnesses. We note that the Commission has held that its administrative judges have wide discretion in the conduct of hearings. See C.F.R. � 1614.109 et seq. In this case, the AJ stopped the hearing and issued a bench decision because the AJ determined that Complainant failed to establish a prima face case of sex discrimination. Under the facts of this particular case, we do not find that the AJ abused his discretion in ending the hearing.
To prove his hostile work environment/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. Based on a review of the investigative report, the AJ concluded Complainant did not meet this burden. On appeal, Complainant has not established a reversible error in the AJ's conclusions.
Therefore, 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 action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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 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
October 19, 2016
__________________
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 The record reflects that on June 3, 2014, Complainant voluntarily retired from Agency employment.
3 The record reflects that in his affidavit and during the deposition, Complainant clarified that he was not alleging discrimination on the basis of disability. Therefore, the AJ only addressed sex as a basis.
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