Israel J.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionJan 29, 20160120150691 (E.E.O.C. Jan. 29, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Israel J.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120150691 Agency No. 1K-206-0023-14 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the November 14, 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 Full-Time Mail Handler at the Agency’s Southern Maryland Processing and Distribution Center in Capital Heights, Maryland. On January 9, 2014, the Tour I Manager informed the Distribution Operations Manager (M1) that all Tour II employees needed to assist Tour I employees with dispatching. M1 walked the floor to ensure that all employees were supporting dispatch and noticed that Complainant was not at his assigned area. M1 used the intercom several times to instruct Complainant to return to his assignment. Complainant appeared in her office almost 30 minutes later, and M1 instructed Complainant to report to his assignment immediately. Complainant left M1’s office angry and ignored M1’s attempts to call him back to talk to him. M1 observed Complainant at his assignment picking up full trays of standard mail and slinging 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. 0120150691 2 them into the stainless steel containers causing them to move from their position. M1 contacted the Senior Manager about Complainant’s angry demeanor and he instructed her to contact the Postal Police. M1 used a radio to contact the Postal Police and Complainant was informed that he was being removed from the premises because his behavior posed a safety risk. Complainant was allowed to return to work the next day and was compensated for his absence. On January 10, 2014, M1 learned that Complainant had sent a co-worker (CW1) threatening and harassing text messages. The text messages mentioned physical threats to CW1, other employees, and CW1’s family members. CW1 showed M1 the text messages, and M1 contacted the Postal Inspectors. The Postal Inspectors interviewed CW1 and his wife. As a result of the threatening messages, M1 placed Complainant on emergency placement in off- duty status on January 11, 2014. Complainant was instructed to return to work on January 14, 2014; however, on January 13, 2014, Complainant received a notice informing him that his emergency placement would remain in effect until further notice. On January 18, 2014, Complainant was instructed to report for a pre-disciplinary interview on January 23, 2014. Complainant failed to report as instructed. On January 24, 2014, Complainant was informed that he had two days to reschedule the appointment. On January 29, 2014, Complainant reported for a pre-disciplinary interview with the Distribution Operations Supervisor (S1) regarding the threatening text messages. On February 12, 2014, Complainant was issued a Notice of Removal for failure to follow official instructions on January 9, 2014, and for violation of Agency policy on the joint statement of violence and behavior in the workplace for the threatening text messages. On April 29, 2014, 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 (African-American) and sex (male) when: 1. On January 9, 11, and 14, 2014, he was placed on Emergency Placement; and 2. On February 13, 2014, he received a Notice of Removal dated February 11, 2014. At the conclusion of the investigation, the Agency provided Complainant 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). When Complainant did not respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, M1 affirmed that she placed Complainant on emergency placement on January 9, 2014, based on his angry demeanor after she instructed him to return to his assignment. M1 stated that Complainant slammed a clipboard in a door slot when he left 0120150691 3 her office, ignored her calls for him to return, and slung full mail trays into the stainless steel containers. M1 confirmed that she contacted Postal Police and that he was removed from the premises. M1 allowed Complainant to return the next day and he was compensated for his absence. M1 averred that she placed Complainant in emergency placement on January 11, 2014, after she learned that he sent CW1 threatening text messages. She later issued him a notice on January 14, 2014, informing him that his emergency placement would continue until further notice. Finally, S1 stated that she issued Complainant the Notice of Removal for his insubordination on January 9, 2014, conduct unbecoming of a Postal employee, and violation of the Zero Tolerance Policy. The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretext for unlawful discrimination or that any of the incidents were based on discriminatory animus. As a result, the Agency found that Complainant had not been subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the record shows that he did not work unsafely and that M1 unfairly placed him on emergency placement on January 9, 2014. Complainant contends that he texted CW1 because he believed that he had something to do with him being placed on emergency placement, and CW1 worked the entire next day with him without any hard feelings. Further, Complainant believes that there was no need to put him on emergency placement days after he sent the text messages and that the Agency misapplied their Zero Tolerance Policy. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS Hostile Work Environment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). 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., 510U. S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview.” Harris, 510 U.S. at 22 (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 0120150691 4 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. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Complainant asserted that based on his protected classes, management subjected him to a hostile work environment based on several incidents where Agency officials took actions that seemed adverse or disruptive to him. The Commission concludes that Complainant failed to show that he was subjected to a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency's actions. 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. For example, M1 stated that Complainant was placed on emergency placement on January 9, 2014, because she saw his angry demeanor escalate after she instructed him to return to his assignment. ROI, at 124. M1 affirmed that Complainant ignored her calls to talk to him and slammed trays into containers. Id. As a result, M1 concluded that Complainant was a safety risk and placed him on emergency placement. Id. M1 later learned that Complainant sent threatening text messages to CW1 in violation of the Agency’s Zero Tolerance Policy, and placed him on emergency placement on January 11 and 14, 2014. Id. at 118, 197-200. Complainant subsequently received a Notice of Removal for his conduct on January 9, 2014, and for sending CW1 a total of 44 text messages threatening him and his family. Id. at 203-06. Furthermore, Complainant has not shown that the Agency's reasons for its actions were a pretext for discrimination. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or a hostile work environment as alleged. 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. 0120150691 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, P.O. Box 77960, Washington, DC 20013. 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 0120150691 6 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 January 29, 2016 Date Copy with citationCopy as parenthetical citation