Marcos S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionJan 29, 20160120142953 (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 Marcos S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142953 Hearing No. 520-2013-00394X Agency No. 4B-110-0144-12 DECISION On August 20, 2014, Complainant filed an appeal from the Agency’s July 21, 2014 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a City Carrier at the Main Post Office in Flushing, New York. On December 12, 2012, he filed an EEO complaint in which he alleged that he was harassed by the Customer Services Supervisor, his immediate supervisor (S1), and an Acting Supervisor (AS) because of his age (53) and previous EEO activity. Complainant identified three incidents in support of his claim which are discussed below. At the conclusion of the ensuing investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but over his objections, the AJ assigned to the case granted the Agency’s June 9, 2014, motion for summary judgment and issued a decision on July 2, 2014, without 1This 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. 0120142953 2 holding a hearing. 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. Complainant initially alleged that on September 10, 2012, S1 bullied him by not giving him the information he needed to complete his delivery route, and that when he asked for the information, S1 stared at him in a manner intended to raise his anxiety level. Investigative Report (IR) 105, 114-18, 165, 204. S1 responded that once she finished giving Complainant his instructions on the date in question. Complainant informed her that he would not be able to complete the route by himself and that she told Complainant to complete a form 3996 for auxiliary assistance (AA form). IR 148. She denied that she stared at him. IR 156. The Customer Services Manager, Complainant’s second-level supervisor (S2) averred that employees who do not feel well enough to complete an assignment are required to submit the AA form, and that Complainant did so. IR 181, 191-92. The AS testified that he assisted Complainant on the route, and that he called 911 on Complainant’s behalf after Complainant reported feeling ill. IR 203-204. Complainant next alleged that on September 13, 2012, S1 falsified records pertaining to his delivery report in order to make it appear as if he had failed to deliver between 20 and 30 pieces of certified mail. IR 101, 155. S1 and S2 both denied that they were aware of any instances in which delivery records had been falsified. IR 144-45, 179. Finally, Complainant alleged that on September 27, 2012, the AS questioned Complainant about his EEO issues in front of his coworkers, asking questions like “how’s everything?” and “what’s going on?” IR 105-08, 192. The AS averred that Complainant did not work for him, that they did not work in the same section, and that he never came onto the workroom floor to question Complainant. IR 167. S2 testified that she was not aware of any allegation concerning Complainant being intimidated by the AS. IR 183, 192. ANALYSIS AND FINDINGS In order to warrant a hearing on his harassment claim, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether S1 or AS1 were motivated by unlawful considerations of his age or previous EEO activity in connection with the incidents described in his complaint. See 29 C.F.R. § 1614.109(g); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Evidence of discriminatory or retaliatory intent can take the form of statements or past personal treatment attributable to S1 or AS1, comparative or statistical data revealing differences in treatment across age-related lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). If Complainant fails to raise a genuine issue of material fact on the issue of motive, then there is no need for the Commission to inquire as to whether any of the incidents comprising her claim are severe or pervasive enough to rise to the level of a hostile environment. Nicki D. v. Department of Veterans Affairs, EEOC Appeal No. 0120133247 (October 15, 2015). 0120142953 3 When asked by the investigator why he believed that his age and prior EEO activity were motivating factors in the three incidents at issue, Complainant responded that management wanted to get rid of him because of his age and seniority and that they wanted to make an example out of him for utilizing the EEO process. IR 104-05. Complainant’s assertions apparently rest on the notion that the acts complained of, in and of themselves are sufficient to establish motive. This is simply not true. The laws enforced by the Commission are not a civility code. See McFadden v. Department of the Army, EEOC Appeal No. 0120122405 (October 12, 2012). They cannot protect Complainant from a supervisor’s or manager’s actions toward him unless those acts are rooted in a statutorily proscribed motivation. And on this crucial issue, Complainant did not present evidence of any of the indicators of pretext described above. He has not presented any sworn statements from other witnesses or documents that contradict the explanations provided by S1 or the AS, or which call their veracity into question. We therefore find, as did the AJ, that no genuine issue of material fact exists with respect to S1’s and the AS’s motivation in connection with the incidents comprising his claim of discriminatory harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 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. 0120142953 4 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 January 29, 2016 Date Copy with citationCopy as parenthetical citation