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

Equal Employment Opportunity Commission

Nov 30, 2018

0120172135 (E.E.O.C. Nov. 30, 2018)

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

Jessie G.,1
Complainant,

v.

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

Appeal No. 0120172135

Agency No. 4E553004716

DECISION

On June 4, 2017, 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
May 4, 2017, 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 Laborer Custodial,
PS-04, at the Oak Park Heights Carrier Annex in Stillwater, Minnesota. On September 12, 2016,
Complainant filed an EEO complaint alleging that the Agency discriminated against him and
subjected him to a hostile work environment, based on his race (African-American) and color
(black) when: (1) on or around January of 2014, and ongoing, he has not been paid for performing
higher level work; (2) on or around December 26, 2015, management escorted him out of the
building and charged him with Absence without Leave (AWOL); (3) from May 2015 to May 2016,
his Postmaster (PM) harassed him by using racial labels and making comments such as “things
happen to you because you are Black” and “because you are Black and the Post Office is ran by
good old boys;” (4) on July 13, 2016, PM returned to the facility, had lunch in the break room, did

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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not clean up, and told him that he left a present for him in the break room and called him a “monkey
man;” (5) on August 10, 2016, PM again returned to the facility and told him to “go back to the
zoo;” and (6) on November 30, 2016, a coworker made comments contributing to the hostile work
environment created by his former Postmaster.

After 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 EEOC (AJ). In accordance with
Complainant’s request, 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. Complainant filed the instant appeal without submitting any arguments
or contentions in support.

FACTUAL BACKGROUND

Claim 1 – Pay for High-Level Work

With respect to Claim 1, the record shows that Complainant was paid higher-level pay from pay-
period (PP) 15 through PP 25, 2015, and received a union grievance settlement concerning this
issue on July 14, 2016.

Claim 2 - AWOL

With respect to Claim 2, Complainant’s supervisor (S1A) asserted that Complainant refused a
direct order to take out a “jump seat” from a Long-Life Vehicle for Rural Route 11, stating it was
“not his job” and that he wanted a “work order.” S1A further asserted that she explained to him
that he was to follow a direct order, but could later grieve the issue. However, S1A stated that
Complainant ignored her and walked away at which point she told him to go to the office, which
he again ignored. S1A affirmed that she then instructed Complainant to clock out and leave the
building, but he did not leave. S1A stated that she instructed Complainant that he needed to “get
his things and leave,” and he refused a third time after which she made it clear that she would
“contact the police department if he was not out of the building in five minutes.” S1A confirmed
that Complainant was not placed on Emergency Placement or given instructions about when to
return to work. S1A further stated that Complainant was a “No Call” or “No Show” on December
28, 2015 through December 31, 2015, which were the days he was scheduled to work the following
week. As a result, S1A charged him AWOL. She averred that Complainant returned to work, on
January 4, 2016.

Claims 3, 4, and 5 – Racially Derogatory Statements

PM testifies that he retired from the position of Postmaster, at the Stillwater Post Office on June
1, 2016. He categorically denied Complainant’s assertions. Specifically, he claimed that he
returned to the Post Office after his retirement on one occasion (in June 2016 to discuss a pay
anomaly) and did not see Complainant during that visit. PM also described Complainant as a
pathological liar who lacked character, integrity, and all credibility.
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S1A confirmed that in October 2015, she hung a picture containing a gorilla, but she hung the
picture to make people laugh at the quote it contained, not because of the gorilla. She stated it was
a quote about attitudes, but cannot remember the exact wording. S1A also stated that she was
never aware that anyone was offended by the picture. S1A further denied making racially
derogatory statements at any time or witnessing others making such statements. A coworker of
Complainant’s (CW1) stated that she did not see S1A hang the gorilla picture, but she heard S1A
tell another supervisor, [SIB] “it looks like [Complainant].”

Claim 6 – Harassment by a Coworker (CW2)

The record shows that Complainant did not provide specific details in support of this allegation
that his co-worker (CW2) made comments that contributed to the hostile work environment.

According to the current Postmaster (PM2), on November 30, 2016, Complainant approached him
asserting that he was told by someone else that CW2 made statements about him (Complainant).
According to PM2, Complainant stated that CW2 had talked poorly about him in the past and they
had never gotten along. PM2 affirmed that the next day he met with CW2 to get his side of the
story. According to PM2, CW2 explained that he had complained about the poor job Complainant
was doing, but that was it. PM2 asserted that he informed CW2 that if he had any opinions about
the work being done, he should talk to him and not vent on the workroom floor. PM2 further
stated that he took Complainant to the office the next day and told him about his discussion with
CW2. PM2 further noted that the conflict between CW2 and Complainant seemed to be a long -
running issue between two co-workers. PM2 also noted that he helped Complainant get a transfer
out of the station, which Complainant believed would help remedy his issues.

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”).

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he or she belongs to a
statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
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based on their statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working environment.” Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from
the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

Here, Complainant alleges that he was subjected to a hostile work environment based on numerous
incidents. With regard to the alleged racial and offensive comments, we note that the Commission
has held that, under certain circumstances, a limited number of highly offensive slurs or comments
about a federal employee's race or national origin may in fact state a claim under Title VII. See
EEOC Compliance Manual, Section 15, “Race and Color Discrimination,” No. 915,003, 15-38
(Apr. 29, 2006) (a single incident of a racial comparison to an animal may create a hostile work
environment); Williams v. U.S. Postal Serv., EEOC Appeal No. 0120092247 (July 22, 2009)
(complainant's claim that he was referred to as “Monkey Boy” stated a claim of discrimination);
Parnell v. Dep’t of Veterans Affairs, EEOC Request No. 0520100031 (Dec. 17, 2009) (calling
complainant's granddaughter a “monkey” found sufficient to state a claim).

Here, we find that there is insufficient evidence that the incidents occurred as alleged. We note
that Complainant has presented no corroborating evidence in support of his claims and that none
of the witnesses identified by Complainant had first-hand knowledge of any alleged acts or
derogatory statements directed to him. We do not find CW1’s statement that he overheard S1A
telling S1B that “it looks like [Complainant]” (referring to the gorilla picture) sufficient to prove
that it occurred.2 Furthermore, S1A denied making any such statement. S1A stressed that she
only hung up the gorilla picture for the quote it contained about attitudes. S1B denied having
knowledge about the existence of the gorilla picture or ever witnessing any racially derogatory
statement made in the workplace. Likewise, PM denied making any offensive statements to
Complainant and noted that he did not even see Complainant on the one occasion he visited the
facility following his retirement. Management officials denied that Complainant ever reported
any of the alleged offensive conduct, except for the issues between Complainant and CW2. PM2
talked to both employees about keeping their opinions off the floor and out of work. PM2 later
assisted Complainant in getting a transfer out of the facility, which Complainant believed would
alleviate his concerns.

2 We note that the alleged statement that the gorilla looked like Complainant was not made to
Complainant directly.
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Regarding his higher-level pay claim, management officials confirmed that Complainant
performed higher-level work on several occasions and that his time was recorded. The record
shows that Complainant was paid higher-level pay from PP 15 through PP 25 in 2015.
While there may have been a dispute regarding the amount, the record reveals that Complainant
was paid a lump-sum payment following a grievance settlement concerning this issue. Finally,
with respect to the AWOL charge and being escorted out of the building, the record reveals that
Complainant refused several direct orders to perform a task and then to leave the facility after he
refused to perform the task. Complainant failed to report to work for his scheduled work days
following the incident and was charged AWOL as a result.

The Commission concludes that, based on the totality of the circumstances, Complainant has not
shown that he was subjected to a discriminatory hostile work environment. Moreover, to the extent
Complainant claims that he was subjected to disparate treatment, the Commission finds that, as
discussed above, Complainant has not demonstrated that the Agency’s explanation for its actions
was pretext for discrimination. As a result, the Commission finds that Complainant was not
subjected to discrimination or a hostile work environment as alleged.

CONCLUSION

Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s final 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
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(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.

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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 30, 2018
Date