Merrill O.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Mar 23, 2016

0120140158 (E.E.O.C. Mar. 23, 2016)

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

Merrill O.,1
Complainant,

v.

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

Appeal No. 0120140158

Hearing No. 410-2013-00053X

Agency No. 4K-300-0048-12

DECISION

The Commission accepts Complainant’s appeal from the September 17, 2013 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 Rural Carrier at
the Agency’s Webb Bridge Station in Alpharetta, Georgia. In mid-March 2011, Complainant
claims that a supervisor issued him a late slip to fill out at the request of the Postmaster.
Complainant went to the Postmaster’s office and asked why he received a late slip when he
was not late. Complainant alleges that the Postmaster told him that she could guarantee that
she was going to get him out of the facility again.

On October 14, 2011, Complainant called in and informed his supervisor (S1) that he had to
take a friend to the hospital and would not be reporting to work. Complainant had previously
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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had his annual leave request for the day denied. Complainant alleges that S1 informed him
that she would have his badge and remove him if he did not report to work as it was too late
for her to find a replacement. Complainant had his friend reschedule the doctor's appointment
and reported to work. While out on his route, Complainant failed to return S1’s calls. When
he returned to the office, Complainant ignored S1’s attempts to talk to him. Complainant
alleges that S1 followed him, requested his badge, and invaded his personal space in a
threatening manner.

On November 22, 2011, Complainant received a Letter of Warning for Unsatisfactory
Performance. The letter charged Complainant with failing to timely deliver an Express Mail
parcel on November 18, 2011. Complainant claims that that he had no way of knowing that
the parcel in question was an Express Mail package as it was in his parcel hamper and he did
not receive it from the accountable cage. However, the November 18, 2011 accountable log
showed that Complainant signed for an Express Mail parcel for his route, and the mail piece
was scanned on 15:02, outside of the 11:59 to 14:59 Express Mail window.

In December 2011, Complainant claims that S1 held an official discussion with him for
allegedly not being in his case at 9:00 a.m. Complainant maintains that he was clocked in on
time and was performing relevant work outside his case. During this discussion, Complainant
averred that S1 stated she was going to keep her eye on him.

On March 14, 2012, 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), sex (male), and in reprisal for prior protected EEO activity when:

1. From February 2011 to approximately October 14, 2011, he was given late slips to
sign, even though he was on time and at some point during this time period the
Postmaster informed him she could guarantee she was going to get him out of there
(Alpharetta Post Office) again;

2. On October 14, 2011, management told him that if he did not report to work she
would have his badge and remove him from the Post Office; and when he returned
from his route his supervisor requested his badge and entered into his personal
space in a threatening manner;

3. On November 22, 2011, he was issued a Letter of Warning for Unsatisfactory
Performance; and

4. In December 2011, management conducted an official discussion with him; and his
supervisor stated she was going to keep her eye on him.2
2 The Agency dismissed three additional claims pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. Complainant raised no challenges to the dismissal of these claims on
appeal; therefore, the Commission will not address them in this decision.

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At the conclusion of the investigation of the complaint, 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). Complainant timely
requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued
a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that
management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as
to claim (1), the Postmaster stated that all employees were given late slips to sign when they
failed to give one to their supervisor upon reporting late. The Postmaster attested that
Complainant would be given a late slip for failing to fill one out when he reported late.
Further, the Postmaster contended that it was not personal for her and she would not have any
reason to tell Complainant that she guaranteed that he would be out of the office again. The
Postmaster’s Secretary confirmed that she did not hear the Postmaster tell Complainant she
would get him out of the facility again. The Postmaster added that Complainant’s performance
was his own doing and not anything she could control.

Regarding claim (2), S1 affirmed that that she instructed Complainant that if he did not report
to work she would remove him as he had requested annual leave for this date previously, and it
had been denied based on the needs of the service. S1 stated that by the time he called into the
office he was late and no replacement was available to case the route. S1 contended that after
reporting she had tried to contact Complainant on his route and he would not respond to her
calls. Upon returning to the office, she again tried to talk to him but he would not look at her
or try to listen to what she said.

With respect to claim (3), S1 confirmed that she issued the Letter of Warning on November
22, 2011, to Complainant for failing to deliver Express Mail on time. S1 stated that it was
Agency policy for management to issue corrective action for failure in delivery of the premium
product of Express Mail. All Express Mail was to be delivered by 11:59 or 14:59 with no
exceptions. S1 affirmed that Complainant had an Express Mail piece on his route and the mall
was scanned at 15:02. As a result, Complainant received a Letter of Warning for
Unsatisfactory Performance. Finally, regarding claim (4), S1 asserted that she had discussions
with Complainant to ensure that her requests were understood and that she keeps her eyes on
all of her employees as a supervisor.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged. Complainant
filed the instant appeal without submitting any arguments or contentions in support.

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ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a
statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based
on his 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).

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
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 to withdraw his request for 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 or
retaliatory 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, as to
claim (1), S1 confirmed that she requested that Complainant submit leave slips when he was
more than five minutes late reporting to work. ROI, at 225. Regarding claim (2), S1 stated
that she made the comment after Complainant stated that he was not going to report on a day in
which his annual leave request had been previously denied due to the needs of the service. Id.
at 226. S1 noted that by the time Complainant called the office, it was too late to find a
replacement. Id. Complainant subsequently reported to work, but would not return S1’s calls
while out on the route and ignored her when he returned to the office. Id. at 227. Regarding
claim (3), S1 affirmed that she issued Complainant a Letter of Warning for Unsatisfactory
Performance after Complainant failed to deliver an Express Mail package on time. ROI, at
228. S1 added that it was District policy to issue discipline for untimely Express Mail

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deliveries. Id. at 229. Finally, S1 asserted that Complainant would often not follow her
instructions; therefore, she held an official discussion to ensure he understood her instructions.
Id. at 230. S1 noted that she keeps her eyes on all of her employees as their supervisor. Id.

The Commission finds that Complainant has not proffered any evidence showing that the
Agency's explanation was a pretext for discrimination or reprisal. As a result, the
Commission finds that Complainant was not subjected to discrimination, reprisal, 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.

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

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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

March 23, 2016
Date