Jerome D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Nov 1, 2016

0120140893 (E.E.O.C. Nov. 1, 2016)

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

Jerome D.,1
Complainant,

v.

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

Appeal No. 0120140893
Hearing No. 560-2013-00105X
Agency No. 4E680003012

DECISION
Complainant filed an appeal from the Agency’s November 20, 2013, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS
22, at the Dodge City Post Office in Dodge City, Kansas. On July 19, 2012, Complainant
filed an EEO complaint alleging that the Agency subjected him to ongoing harassment on the
basis of his race (Hispanic)2 when: (1) on February 14, 2012, he was instructed not to attend a
telecom, and told he could not cover for the Acting Manager Post Office Operations (PM1) on
the telecom; (2) in the middle to late part of March 2012, he was not selected for a detail
opportunity into a Manager Post Office Operations (MPOO) position; (3) on April 24, 2012,

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 We note that protected class of “Hispanic” is more accurately characterized as a national
origin, rather than race.
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he was instructed to work outside of his normal schedule; and (4) since March 2, 2012, his
manager has subjected him to excessive reviews and negative comments.3

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 a U.S. Equal
Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ).
Complainant timely requested a hearing but subsequently withdrew his request. Consequently,
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.

FACTUAL BACKGROUND

Instruction not to attend telecom - February 14, 2012

According to Complainant, PM1 asked him if he would cover a telecom for her on February
14, 2012. Complainant agreed, but when he joined the telecom, a supervisor knocked on his
door and told him to "get off right away." According to Complainant, his second-line
supervisor’s secretary called him at about the same time and also told him to get off the
telecom. Complainant expressed his belief that his second-line supervisor (S2) was responsible
for the instruction that he cease his participation in the February 14, 2012 telecom.

Complainant asserts that when he asked why he was not allowed to attend the telecom, PM1
told him it was because he needed to get his carrier issues taken care of and that the telecoms
were taking him away from focusing on those issues. Complainant did not find this
explanation credible since two other Postmasters were participating in the telecoms and they
had worse carrier performance issues. Complainant notes that he complained to PM1 but
nothing was done.

S2 asserts that she told PM1 to get Complainant off of the call because he did not need to
participate. According to S2, a previous senior MPOO had instructed other MPOOs to find
someone to sit in for them if they were unable to attend this call. However, she states her
approach is different and she does not want to take Postmasters away from their work to attend
these calls. She claims the only such calls that Postmasters should attend are on Wednesdays,
which are more detailed, so if Postmasters are on the calls any other day of the week, she asks
them to get off the call. Further, she states she will cover for other MPOOs who cannot attend
this call and recently bumped the Postmasters from Garden City and Colby off of the call. S2
further asserts that Complainant's race was not a factor in this incident.

3 The Agency dismissed the following claim: (5) during mediation, on or about June 29, 2012,
management purportedly stated "do you think you are special because you are Hispanic." We
affirm the Agency’s dismissal on the basis that it fails to state a claim in accordance with 29
C.F.R. 1614.107(a)(1).
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Not detailed to MPOO position - mid/late March, 2012

Complainant explained that he applied to a posting for a detail assignment in the middle to late
part of March, 2012. According to Complainant, the position involved overseeing four mail
processing locations, which was a task he performed and was familiar with. However, he
advised he was not selected and contends a person with no experience in mail processing was
given the detail assignment.

S2 acknowledges that Complainant applied for the detail assignment at issue. She affirms that
she made her decision to select another Postmaster (PM2) based on a previous settlement in an
EEO case. S2 advised she was not involved in that case, but she selected PM2 on that basis.
The record also shows that PM2 agreed to dismiss her pre-complaint of discrimination under
certain conditions, including that she was to be assigned one higher level detail assignment
prior to January 16, 2013.

Instructed to work outside normal schedule - April 24, 2012

According to Complainant, S2 instructed PM2 to advise him to work dispatch every night due
to a problem with mail being routed incorrectly. Complainant insists this was harassment
because the problem was not significant. He attests that other facilities were reported to have
the same problem, but those managers were not made to work nights. Complainant notes that
he complained to PM2, but she could not do anything, because she was being instructed by S2.

In an e-mail to PM2, the subject of which was "Daily Overnight Summary – Monday, April
23, 2012," S2 wrote that she expected Complainant to work dispatch every night until the mail
leakage problem was corrected. S2 indicated that Complainant was to send her a report every
night as to his findings regarding the leakage situation.

PM2 affirmed that she had retired from the Postal Service since this event, so she did not have
any documentation, but she was able to recall the situation generally. She asserts that the
Agency had testers who would place mail in collection boxes in order to measure the time it
took for the mail to get from one point to another. According to PM2, through this process it
was learned that mail which should have stayed in the Dodge City area for delivery was
consistently being sent on to Wichita for processing, which caused a delivery delay. Based on
this, the external first class (EXFC) scores for Dodge City were extremely bad. According to
PM2, S2 notified her that Complainant should temporarily change his schedule to work the
tour on which the problem was occurring in order to determine what was happening. PM2
notes that when she instructed Complainant to change his schedule, he complained to her that it
was not fair. PM2 also states that due to staffing changes in many offices, including the office
where she was permanently assigned, it was necessary for Postmasters to take on some
different duties. PM2 further notes that she had done that when her supervisory staff was
reduced. S2 explains that she was not Complainant’s direct supervisor, but notes it was not
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uncommon for employees in his position to work outside their normal schedule in order to
identify and fix problems. She explains that Managers in numerous locations had been asked
to adjust their schedules in order to learn their operations or to complete the duties of their
daily assignments.

Excessive reviews and negative comments - since March, 2012

During the time period noted, according to Complainant, managers conducted service reviews
in his office in April and May 2012, May or June 2012, and in late August or early September
2012. Complainant claims he felt harassed due to the number of reviews, which he claimed
was more than other offices. With respect to negative comments, Complainant contends that
on June 22, 2012, a MPOO (MPOO1) explained what daily meant, which Complainant asserts
was demeaning and belittling. An e-mail dated June 22, 2012 from MPOO1 instructed
Complainant to provide a particular list on a daily basis. MPOO1 wrote that daily meant the
list was to be sent to him every day. An e-mail dated April 6, 2012 documented an
unannounced review that had been performed at Complainant’s location. The reviewers were
complimentary of the processes in place at that location and advised they did not see anything
that would indicate a problem resulting in poor EXFC scores.

Complainant acknowledged he had received anti-harassment training. He indicated he reported
to the District Manager (S3) that he felt he was being harassed, but that his complaint was not
made directly to S3. Rather, as Complainant explains, he wrote a letter to his U.S. Senators
(US), and S3 was eventually contacted to provide a response. According to Complainant,
nothing was done to correct the situation. The record contains a form Complainant had sent to
US in which he complains he had been treated unfairly "by the number of audits or reviews
that had been conducted." S3 responded by advising that confidentiality issues prevented him
from providing a more complete response.

ANALYSIS AND FINDINGS

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”).

The Commission agrees with the Agency’s analysis and findings that Complainant failed to
establish by preponderance of the evidence that the Agency’s articulated legitimate, non-
discriminatory reasons for its employment actions were a pretext or otherwise motivated by
discriminatory animus. In addition, we agree that Complainant failed to prove by a
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preponderance of the evidence, that he was subjected to conduct that rose to the level of a
hostile or abusive work environment or that such conduct unreasonably interfered with his
work performance.

CONCLUSION

Accordingly, 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 decision
finding that Complainant failed to establish discrimination as alleged.

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).

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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

November 1, 2016
Date