Leif S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

May 29, 2018

0120162794 (E.E.O.C. May. 29, 2018)

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

Leif S.,1
Complainant,

v.

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

Appeal No. 0120162794

Agency No. 4B-105-0007-16

DECISION

On September 1, 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
August 15, 2016, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Full-Time Carrier
(City) at the Agency’s Port Chester Post Office in Port Chester, New York. On February 8, 2016,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (African-American), national origin (African-American), sex (male), color (Black),
disability (shoulders), age (57), and reprisal for prior protected EEO activity when:

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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1. on or about October 13, 2015, his Workers’ Compensation claim was denied;2

2. on October 20, 2015, during a stand-up talk, the Postmaster threatened to call the
police to have him escorted out of the building;

3. from October 21-29, 2015, he was charged Leave Without Pay for his absence
rather than the sick leave that he requested;

4. on November 19, 2015, he was issued a Notice of 7-Day No Time Off Suspension
dated November 16, 2015, for the charge of AWOL;

5. on January 13, 2016, he was issued a Notice of 7-Day No Time Off Suspension for
Failure to Perform the Duties and Responsibilities of his Position; and

6. on April 7, 2016, he was put on Emergency Placement in an Off-Duty Status
Without Pay.

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 EEOC Administrative
Judge (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.

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”).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally 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). The prima facie

2 The Agency dismissed Claim #1 for failure to state a claim, pursuant to 29 C.F.R.
§ 1614.107(a)(1). On appeal, Complainant’s statements addressing the dismissal were received
beyond the 30-day filing time limit of 29 C.F.R. § 1614.403(d). Accordingly, the statements will
not be considered and we will not further discuss the dismissal of Claim #1.
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inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995).

Claim #2 (Postmaster Threatened to Call Police)

The record indicates that during a “stand up” meeting to discuss workplace rules, Complainant and
his postmaster engaged in a discussion about the correct application of a particular rule. The
discussion became heated and the Postmaster threatened to call the police to remove Complainant
from the workplace as, apparently, she had done on a previous occasion. The Agency found that
Complainant did not show that that he was harmed by the Postmaster’s action with respect to the
terms and conditions of his employment. We find that the Agency’s position is well taken. The
Postmaster did not call the police and no action was taken against Complainant. The Commission
has held that a verbal reprimand unaccompanied by concrete action does not render an employee
aggrieved. See Banks v. Department of Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Nor does the evidence show that the Postmaster’s actions constituted
workplace harassment. The single act alleged was not sufficiently severe or pervasive to constitute
harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Claim #3 (Charged Leave Without Pay)
Claim #4 (November 2015 7-Day Suspension)

The Agency explains that Complainant was charged Leave without Pay and issued a 7-day
suspension because he failed to supply documentation to support his request for sick leave for the
period October 21-29, 2015. Complainant called the “ERMS” system to request unscheduled
leave, claiming he had been injured on duty. When he returned to duty his supervisor requested
that he submit documentation to support his unscheduled leave request. When Complainant failed
to do so, he was charged with Leave Without Pay for the days he was off duty and issued a 7-day
suspension for failure to comply with attendance requirements. This is a legitimate,
nondiscriminatory reason for the Agency’s action. Complainant has failed to prove it is a pretext
designed to conceal discriminatory animus.

Claim #5 (January 2016 7-Day Suspension)

According to the Agency, Complainant was issued a 7-day suspension because, on January 5,
2016, he failed to deliver Express Mail in a timely manner. This is a legitimate, nondiscriminatory
reason for the Agency’s action. Complainant has failed to prove it is a pretext designed to conceal
discriminatory animus. Complainant challenged the suspension in a grievance proceeding. The
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grievance proceeding reduced the punishment from a suspension to a Letter of Warning but did
not call into question the Agency’s determination that the violation occurred.

Claim #6 (Placed Off Duty Without Pay)

According to the Agency, Complainant was placed off duty on an emergency basis because he
physically threatened the Postmaster. Specifically, as the Postmaster relates it, Complainant
motioned with a parcel as if preparing to throw it at her and “lunged toward [her] with his fists
clenched.” ROI at 305. This is a legitimate, nondiscriminatory reason for the Agency’s action.
Complainant has not shown it to be a pretext designed to conceal discriminatory animus. Indeed,
in response to the investigator’s questions, Complainant avoids addressing the charge that he
threatened the Postmaster other than asserting generally that he “did not do nothing.” ROI at 209.

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 decision finding that Complainant
did not establish that he was discriminated against as alleged.

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.
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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

May 29, 2018
Date