0120170047
09-19-2018
Homer V.,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
Homer V.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120170047
Agency No. 4G-335-0031-16
DECISION
On October 8, 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 September 29, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant established he was discriminated against based on retaliation (prior EEO activity) when: 1) on unspecified dates in July 2015, his supervisor arranged a meeting with the District Reasonable Accommodation Committee (DRAC) on his behalf; 2) on December 2, 2015, he was directed to appear at the supervisor's office for a discussion about overtime; and 3) on December 5, 2015, he was given an Investigative Interview for attendance and failure to work overtime.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a full-time (FT) Automated Markup Clerk PS-6 at the Agency's US Postal Service Tampa Computer Forwarding Systems (CFS) facility in Tampa, Florida.
On January 4, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to discriminatory harassment/hostile work environment based on reprisal (retaliation for prior EEO activity) under Section 501 of the Rehabilitation Act of 1973 as follows: on unspecified dates in July 2015, his supervisor arranged a meeting with the DRAC on his behalf; 2) on December 2, 2015, he was directed to appear at the supervisor's office for a discussion about overtime; and 3) on December 5, 2015, he was given an Investigative Interview for attendance and failure to work overtime.
The Agency explained that Complainant's supervisor was only doing her job when she took the actions Complainant states in his claims; that the DRAC decisions were consistent with the Postal Services Handbook on Reasonable Accommodations Manual, and that Complainant's EEO activity was not a factor in any matter.
Claim 1:
Complainant attested that his supervisor (S1) contacted the DRAC member (S2) on her own regarding him (Complainant). Record of Investigation (ROI, Affidavit [Aff.] A, p. 2). He averred he did not request that S1 arrange a meeting with the DRAC. Complainant explained that S1 and S2 discussed him in a phone conversation on July 29, 2015, resulting in them asking him to recertify his medical restrictions. Complainant averred he had submitted medical documentation to management including S1 but had not submitted updated medical since July 2015. He contended his military disability had not changed and he was accepted into CFS with his restrictions on December 1, 2012 and they were honored for the better part of 31 months. (ROI, Aff. A, p. 5).
Complainant claimed S2 opined that his medical documentation only applied to the Processing and Distribution Center (P&DC) and not the CFS Facility. (ROI, Aff. A, pp. 5, 7). He alleged management created a hostile work environment when they violated Management Instruction EL-860-98-2. (ROI, Aff. A, pp. 5, 7; Exhibit 20, pp. 1-14). Complainant affirmed a grievance was not filed relative to the matter. (ROI, Aff. A, p. 6).
Claim 2:
Complainant claimed S1 directed him to appear at her office for a discussion on overtime on December 2, 2015. (ROI, Aff. A, p. 6). He affirmed that S1 and he were the only people present during the discussion and that he repeatedly requested union representation. Complainant averred he could not recall what was discussed, but S1 shouted at him and refused to allow him to have a union steward present. (ROI, Aff. A, pp. 6, 8). He affirmed that no discipline was issued at the discussion. (ROI, Aff. A, p. 8). Record includes notes dated December 2, 2015 indicating S1 held a job discussion with Complainant regarding his attendance and failure to work overtime as instructed. The notes reveal that there was a disagreement as to medical documentation that was on file regarding whether or not Complainant was restricted from working overtime. (ROI, Exhibit 8, pp. 1-2). Complainant alleged S1's shouting and refusing his repeated requests for a union steward constituted a hostile work environment. He affirmed he filed a grievance relative to the matter. (ROI, Aff. A, p. 8).
Claim 3:
Complainant testified that S1 conducted a pre-disciplinary interview (PDI) with him on December 5, 2015 with his union steward present. (ROI, Aff. A, p. 9). He explained the PDI was for attendance and failure to work overtime. Record includes an Investigative Interview conducted by S1 with Complainant on December 5, 2015 with his Union Steward present, regarding deficient conduct and performance related to overtime, attendance, and documentation. The interview reveals the majority of Complainant's responses to S1's questions were "I don't recall". (ROI, Exhibit 9, pp. 1-11). Complainant alleged that at the end of the PDI, he informed S1 there was an ongoing EEO investigation. He noted no discipline was issued at the PDI but he received a two-week suspension one month later. Complainant claimed that every discussion and PDI occurred the day before his day off which he believed was done by S1 to give him something to think about on his off day and this constituted harassment. He affirmed a grievance was filed relative to the matter. (ROI, Aff. A, p. 10).
The record discloses interview notes dated October 20, 2015, meeting notes dated December 23, 2015, and a Cover Letter dated December 31, 2015, for Complainant's grievances on overtime restrictions. The documents indicated that Complainant's union steward interviewed and met with S1, and took notes and/or summarized the meetings, and wrote down his contentions regarding the grievances filed regarding the overtime issue for Complainant's accommodations through the DRAC. (ROI, Aff. A, pp. 19-25).
The record includes Step 1 Grievance Worksheets from December 5, 2015 through June 7, 2016 which revealed that Complainant filed a grievance each time he was directed to work overtime. (ROI, Aff. B, pp. 29-42).
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 pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Regarding claim 1, Complainant argues that he did not become aware of the DRAC meeting until September 2015, after receiving a Freedom of Information Act response which included notes about the July 2015 meeting. Complainant contends that his supervisor violated the Reasonable Accommodation Manual 307 when the supervisor sought specific information, and then later used such information to retaliate against him for his prior EEO complaints against her. Complainant contends that his supervisor is attempting to eliminate his current accommodation and force him to work overtime, even though she is aware that his medical conditions do not allow him to work overtime. Complainant argues that arranging the meeting, without his consent or knowledge, and arranging for him to receive reasonable accommodation material at his home and at work, were actions that he found offensive. Complainant acknowledges that the mere referral to DRAC did not, standing on its own, render him aggrieved. However, he argues that such action is reflective of the continuous harassment he faces from his supervisor over his inability to work overtime.
Regarding claims 2 and 3, Complainant acknowledges that an investigative interview is not enough to be adverse, and that it is normally within the realm of managerial prerogative and authority. However, Complainant contends that his supervisor has taken this action beyond the scope of her position and is abusing her authority. Complainant states that he has a documented medical condition and existing reasonable accommodation that includes not working overtime. Complainant contends that the supervisor's attempt to progressively discipline him, partly for not taking on overtime, is a weapon of intimidation and harassment which has resulted in his seeking medical treatment for the stress of working in a hostile work environment.
In response, the Agency argues that Complainant's appeal presents significantly exaggerated arguments in an attempt to turn entirely benign and unconnected issues into a harassment claim. The Agency contends that there is nothing homogenous about his claims and that Complainant has significantly changed the content and tone from his prior submissions. The Agency notes the six-month gap between the issue concerning the DRAC, and the issues concerning the Investigative Interview. The Agency further argues that there is no discriminatory intent motivating the supervisor, and that the supervisor was merely doing her job.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially 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, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of disability and reprisal discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Here, the Agency explained that S1 was only doing her job when she arranged a meeting with the DRAC on Complainant's behalf without his knowledge or consent; when he was directed to appear in S1's office for a discussion of overtime; and when he was given an investigative interview for attendance and failure to work overtime, and that there was no discriminatory intent motivating S1.
To show pretext, Complainant argued that S1's actions were illegal and retaliatory. He stated in his formal complaint that S1 ran afoul of the established guidelines by trying to circumvent the reasonable accommodations request process, and that he was asked to recertify as a result of S1's telephone conversation with S2. However, both S1 and S2 asserted that Complainant and other employees were instructed to obtain valid medical documentation restricting them from working overtime due to changes in their medical restrictions, and the employer had a need for more employees to work overtime; that the DRAC decisions were consistent with the Postal Services Handbook on Reasonable Accommodations Manual 307; that S1's meeting with Complainant was an attendance discussion, which she also held with other employees, in accordance with a National Agreement; that the Pre-discipline Interview conducted with Complainant was normal procedure prior to any decision to issue discipline; and that Complainant's EEO activity was not a factor in any matter.
We also find that Complainant's allegation that S1 shouted and yelled at him was conduct that was not severe or pervasive enough to rise to the level of unlawful harassment. We therefore find that Complainant has failed to present any plausible evidence that would demonstrate that management's reasons for its actions lacked a basis in the facts of the case or that those actions resulted from non-legitimate, discriminatory motives not articulated by management.
CONCLUSION
Based on a thorough review of the records and the contentions on appeal, including those not specifically addressed herein, we find that Complainant failed to prove that the Agency subjected him to discrimination as alleged. We therefore AFFIRM the final agency decision.
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
__9/19/18________________
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.
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