Irwin R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Nov 1, 2016

0120150108 (E.E.O.C. Nov. 1, 2016)

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

Irwin R.,1
Complainant,

v.

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

Appeal No. 0120150108

Hearing No. 451-2014-00083X

Agency No. 1G781003013

DECISION

On September 29, 2014, Complainant filed an appeal from the Agency’s September 4, 2014,
final order 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s San Antonio General Mail Facility in San Antonio, Texas. In June
2013, an interaction occurred between Complainant and two supervisors concerning
Complainant’s sick leave requests. Complainant perceived the interaction to be harassing in
nature.

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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On September 6, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of disability (hearing disability and diabetes) when he
was harassed about his use of sick leave. 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
(AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s motion for a decision without a hearing on
September 4, 2014. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The Supreme Court has held that summary judgment is
appropriate where a court determines that, given the substantive legal and evidentiary standards
that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a
court’s function is not to weigh the evidence but rather to determine whether there are genuine
issues for trial. Id. at 249. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
For the following reasons, we find that this matter does not present a genuine issue of material
fact requiring a hearing.

Complainant alleges that he was subjected to harassment based on his disabilities. In
considering whether the alleged actions, whether individually or collectively, constitute
harassment, the Commission notes that in Harris v. Forklift Systems, the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that
harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the complainant's employment See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of
harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had
the purpose or effect of unreasonably interfering with his work performance 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 Security Administration, EEOC Appeal No.
01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In assessing whether the complainant has set forth an actionable claim of harassment, the
conduct at issue must be viewed in the context of the totality of the circumstances, considering,
inter alia, the nature and frequency of offensive encounters and the span of time over which the
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encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues
of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the
Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the “terms and conditions of employment.” The Court noted that such conduct
“must be both objectively and subjectively offensive, [such] that a reasonable person would
find [the work environment to be] hostile or abusive, and . . . that the victim in fact did
perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752
(1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).

In this case, Complainant has failed to adduce evidence that the conduct to which he was
subjected was so severe or pervasive as to interfere with his work performance or create a
hostile work environment. Indeed, in his complaint and in his answers to interrogatories,
Complaint has failed even to describe the nature of the harassing behavior other than as a
refusal to respond to his attempts to communicate, apparently complicated by Complainant’s
hearing disability.2 In his answer to Interrogatory #23 asking “exactly what [the supervisors]
said to you” about sick leave, Complainant stated: “I tried to communicate with them [the four
named supervisors] but no one would assist me and they just ignored me.” ROI at 83. At
worst, Complainant is alleging a failure to act on one occasion on the part of the supervisors.
Such alleged inaction does not fit the definition of “unwelcome verbal or physical conduct”
necessary to make out a claim of harassment.

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 final order.

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:

2 This complaint does not present a claim for failure to provide a reasonable accommodation
for Complainant’s hearing disability. We note that the original complaint set forth three
additional claims based on the Agency’s alleged failure to provide a sign language interpreter
to Complaint. Those claims were severed from the complaint and treated separately under a
pre-existing class action settlement. See Bruce C. Hubbard Et Al. v. Patrick R. Donahoe,
Postmaster General, Civil Action No. 03-1062 (RJL/MJF), D.D.C. and Daniel Tighe Et Al.,
EEOC Case No. 320-2005-00065X, Agency Case No. 1E-801-0070-04.
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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
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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

November 1, 2016
Date