Milan S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jun 8, 2018

0120162490 (E.E.O.C. Jun. 8, 2018)

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

Milan S.,1
Complainant,

v.

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

Appeal No. 0120162490

Agency No. 1J-536-0001-15

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the June 23, 2016 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791
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 Parcel Post
Distribution Machine Operator at the Agency’s Processing and Distribution Center in Oshkosh,
Wisconsin. Complainant experienced complications from anxiety and depression. Complainant
submitted medical documentation to Agency officials and was approved for medical-related
absences under the Family Medical Leave Act. Complainant did not have any work restrictions
and had not requested any reasonable accommodations.

On September 27, 2015, Complainant and the Distribution Operations Manager (M1) were
involved in an argument.

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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Complainant became disruptive and deliberately pressed the emergency stop (e-stop) button
delaying mail operations. M1 gave Complainant a direct order four times and Complainant
refused to follow the order. M1 instructed Complainant to leave the workroom floor and
Complainant refused to leave as instructed. M1 felt intimidated by Complainant’s conduct and
called the police. Complainant subsequently left the facility after police officers instructed, but
was informed that he needed to return the next day for a “Day-in-Court” hearing. On September
28, 2015, Complainant returned to the facility, but stood in front of the facility with a picket sign
stating, “Postal Managers at This Location Harass and Discriminate.” Additionally,
Complainant did not report for the Day-in-Court at the scheduled time. When Complainant did
report, M1 gave Complainant a notice informing him that he had been placed on Emergency
Placement in Non-Duty Status Without Pay for unacceptable conduct.

On October 6, 2015, M1 informed Complainant that he was scheduled for a Day-in-Court on
October 8, 2015, to investigate the September 27, 2015 incident. During the hearing,
management believed that Complainant failed to give an acceptable explanation for his actions.
Complainant believed that management controlled the meeting and did not objectively view what
he said. Following the meeting, Complainant remained on emergency placement. On October
16, 2015, M1 issued Complainant a Notice of Removal for his unacceptable conduct and
insubordination on September 27, 2015, in violation of Agency policies. On March 16, 2016,
management sent Complainant a Pre-Arb Settlement Agreement offering to reduce the removal
to a long-term suspension; however, Complainant did not sign the agreement.

On January 15, 2016, 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
(Caucasian), sex (male), disability, and in reprisal for prior protected EEO activity when:

1. On September 27, 2015, Complainant was sent home;

2. On September 28, 2015, Complainant was placed on Emergency Placement;

3. On October 8, 2015, Complainant was given a “Day-In-Court” hearing; and

4. On or around October 16, 2015, Complainant was issued a Notice of Removal.

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). When Complainant did not respond within the timeframe provided
in 29 C.F.R. § 1614.108(f), 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 insufficiently severe or
pervasive to establish a hostile work environment. In addition, the Agency found that
management had articulated legitimate, nondiscriminatory reasons for its actions. In particular,
as to sending Complainant home and placing him on emergency placement, M1 stated that she
sent Complainant home on September 27, 2015, because Complainant stopped all operations on
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the workroom floor and was intentionally delaying mail. M1 noted that Complainant hit the e-
stop button, which was used only in actual emergencies, because he felt M1 was doing Clerk
work. M1 stated that she gave Complainant a direct order numerous times and he failed to
follow it. M1 affirmed that she then instructed Complainant to leave the premises, but he failed
to leave and became so intimidating to her that she was forced to call the Oshkosh Police
Department for assistance. Complainant left only after being instructed to do so by the police
officers. M1 stated that she informed Complainant the next day that he was being placed on
emergency placement for conduct unbecoming of a postal employee.

With respect to the Day-in-Court, M1 stated the hearing was conducted because management
needed to know why Complainant failed to follow orders, what caused Complainant’s actions,
and why the police needed to be called to the facility to remove Complainant. M1 affirmed that
following the hearing and investigation, management determined that Complainant’s actions
violated Agency policy and that he should be removed from service. The Plant Manager (PM)
confirmed that he was the reviewer of the removal documentation and that management decided
to remove Complainant based on his failure to follow a direct order from his 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, and a hostile work environment as alleged. Complainant filed the
instant appeal without submitting any arguments or contentions in support.

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 his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

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Complainant asserted that based on his protected classes, management subjected him to a hostile
work environment as evidenced by several incidents of what he believed to be discriminatory
and retaliatory harassment. The Commission finds that Complainant has not shown that he was
subjected to conduct sufficiently severe or pervasive to create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. For example, as to being sent home and being placed on
emergency placement, M1 explained that Complainant failed four times to follow a direct order
she issued him on September 27, 2015, and failed to leave the premises as instructed. ROI, at
406. M1 affirmed that Complainant had hit the e-stop button thereby stopping all mail
operations because he believed that M1 was doing Clerk work. Id. at 407, 413. M1 stated
Complainant acted in an intimidating manner toward her, and she contacted the police to assist in
his removal from the facility. Id. at 406. Complainant was scheduled to appear the next day for
a Day-in-Court, but reported later than the scheduled hearing. Id. at 408. M1 stated that she
issued Complainant the Emergency Placement in Off-Duty Status because of conduct
unbecoming of a Postal employee and informed him that management would contact him once
the investigation was complete. Id.

With respect to his Day-in-Court hearing and subsequent removal, M1 explained that
management conducted an investigation into Complainant’s conduct to find out the details of
why Complainant failed to follow direct orders and why police needed to be called on September
27, 2015. ROI, at 411. Management determined that Complainant failed to provide an adequate
explanation for his conduct on the day at issue and decided to request his removal. Id. M1
stated that Labor Relations reviewed the Notice of Removal and PM concurred in its issuance.
Id. On October 16, 2015, M1 issued Complainant the Notice of Removal for his unacceptable
conduct and insubordination in violation of the Agency’s Employee and Labor Relations Manual
on September 27, 2015. Id. at 413, 476-78.

The Commission finds that Complainant has not shown that he was subjected to a discriminatory
or retaliatory hostile work environment. Moreover, to the extent Complainant claimed 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 or reprisal. As a result, the Commission finds that Complainant was not subjected
to discrimination, reprisal, or a hostile work environment as alleged.

Finally, the Commission notes that Complainant claimed in his complaint that during the
September 27, 2015 incident, he began to experience symptoms related to his anxiety condition.
Further, Complainant alleged that he was not provided reasonable accommodation following the
incident. The Commission notes that an Agency is required to make reasonable accommodation
to the known physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue hardship. 29
C.F.R. § 1630.9. The Commission will assume without deciding (for the purposes of this
decision) that Complainant was an individual with a disability.
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Complainant admitted that he had no work restrictions and stated that he was able to perform the
essential duties of his position without an accommodation. ROI, at 156. The record reveals that
Complainant informed M1 for the first time during his Day-in-Court hearing that he experienced
complications from anxiety. ROI, at 427. The evidence does not support that Complainant
informed anyone in management of his condition or his need for an accommodation prior to the
September 27, 2015 altercation. A reasonable accommodation is always prospective, meaning
that even once Complainant disclosed his disability and requested reasonable accommodation, he
was entitled to accommodation only from the date of such disclosure. An employer is not barred
from imposing discipline or terminating an employee who, because of a disability, violated a
conduct rule that is job-related for the position in question and is consistent with business
necessity. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, No. 915.002 at Question 36 (Oct. 17, 2002).
Accordingly, the Commission finds that the Agency did not deny Complainant reasonable
accommodation in violation of the Rehabilitation Act.

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 (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.
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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

June 8, 2018
Date