0120162667
03-08-2018
Nathaniel E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nathaniel E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120162667
Hearing No. 510-2014-00210X
Agency No. 4B-0006-0030-13
DECISION
On August 15, 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 July 8, 2016 final order 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 order.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a full-time Sales, Services, and Distribution Associate (SSA) at an Agency post office in Punta Santiago, Puerto Rico. Two SSAs, including Complainant, and one Postmaster staffed the Punta Santiago facility. On July 1, 2013, Complainant filed an EEO complaint alleging that the Agency subjected him to hostile work environment harassment based on reprisal for prior protected EEO activity (March 7, 2012 EEO complaint citing Punta Santiago Postmaster (P1) as responsible management official2) when:
1. on February 6, 2013, P1 acted aggressive and violent toward Complainant after he submitted leave requests and then P1 denied the requests,
2. on an unspecified date, P1 required Complainant to provide medical clearance from a Psychiatrist to return to work after he attended an EEOC hearing,
3. since February 6, 2013, P1 screamed at Complainant continuously, degraded Complainant, denied Complainant non-choice vacation, denied Complainant sick leave, prevented Complainant from delivering mail, hid Complainant's time card, and removed his personnel file from the office nightly,
4. on March 14, 2013, P1 issued Complainant a Letter of Warning (LOW),
5. on March 14, 2013, P1 denied Complainant access to the Change of Address system,
6. on March 22, 2013, P1 indicated that Complainant's hours would change,
7. between February 7 and 15, 2013, P1 charged Complainant as Absent Without Official Leave (AWOL), and
8. about May 7, 2013, P1 issued Complainant a 7-day suspension.
The Agency investigated Complainant's complaint.
Investigation
Agency Response
During the EEO investigation, P1 stated that she became aware of Complainant's prior EEO activity on April 25, 2012. She stated that she did not harass Complainant at any time, but he abused the leave system and impacted the facility's operational needs. P1 stated that Complainant does not follow instructions and is irregular in attendance.
P1 stated that she denied Complainant's leave request for February 6, 2013 because Complainant "abandoned his area of work without his supervisor's authorization." P1 stated that she placed Complainant on AWOL. She noted that February 6 was not the first time that Complainant abandoned his work area and impacted his colleague and Agency operational needs. P1 stated that Complainant took unscheduled sick leave January 22, 25, 28 - 31, 2013 and brought in medical documentation from a Psychiatrist, dated January 24, 2013, stating that he had to rest at home. P1 stated that, on February 6, Complainant requested "indefinite leave" and did not contact the Agency until he returned to work on February 15. P1 stated that when Complainant was absent in February, without notice, the Agency Nurse stated that Complainant had to have medical clearance to return to work.
P1 stated that Complainant is a "bully" to his coworker and in how he functions in the workplace. P1 stated that she removed Complainant's time card from the rack and stored it so that he could not "clock in" before she arrived to work after he had been absent without notice or contact. P1 stated that there must be sufficient information to determine if an employee is fit to return to duty so she informed him that he had to provide medical clearance. P1 stated that Complainant provided medical clearance.
P1 stated that two employees work under her, including Complainant, and she treats them with dignity and respect. P1 stated that she did not deny Complainant's non-choice vacation and his request was processed pursuant to the collective bargaining agreement. P1 stated that she has blocked Complainant from delivering mail when he fails to follow instructions, such as the need to scan packages before taking them out for delivery. P1 stated that Complainant's official personnel folder was never taken from the office and remains in the cage vault for confidentiality and security purposes. Also, P1 stated that, as a small facility, only one person has access to the Change of Address machine and she is the one with access.
Investigative Record
The record contains an email, dated February 7, 2013, from the Agency Nurse to P1 stating that Complainant needs to present medical documentation to return to work. The record also provides a Letter of Availability for Duty, dated February 11, 2013, from P1 to Complainant. The Letter of Availability stated that Complainant had been absent from work since February 6, and asks him to provide "administratively acceptable evidence to substantiate [his] absence" within five days. Also, the record contains an LOW, dated February 27, 2013, for "Failure to Be Regular in Attendance" for unscheduled absences and AWOL in December 2012 through February 15, 2013. The record also contains a 7-day suspension, dated May 17, 2013, citing "Improper Conduct" and "Failure to Be Regular in Attendance."
The record includes, in pertinent part, several Requests for Notification of Absence:
(1) request dated February 5, 2013, listing .58 hour of leave without pay for that day and is not signed by employee or supervisor,
(2) request dated February 6, 2013, wherein Complainant requested "indefinite" leave for continuation of pay and cited "Postmaster acting Hostile and Aggressive with Me," and
(3) request dated February 6, 2013, in which Complainant requested two hours of annual leave for February 7, 2013 and it is signed by employee and approved by supervisor.
Post-Investigation
Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or an immediate final agency decision. Complainant requested the former. The AJ assigned to the case determined that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on June 24, 2016.
The AJ found no discrimination. The AJ found that Complainant, another SSA, and P1 were the only staff at the Punta Santiago facility and unscheduled absences had a negative impact on its operations. Complainant used more than 100 hours of unscheduled leave in a four-month period, which led to P1's frustration and potential hostility. The AJ found that Complainant's failure to follow instructions also led to P1's frustration. The AJ found that Complainant's continued use of unscheduled leave warranted the imposition of discipline. The AJ stated, "Complainant's lengthy, self-serving diatribes do not rebut the Agency's legitimate decision to discipline an employee who abused leave and failed to follow supervisory direction." The AJ found no discrimination based on reprisal for prior EEO activity. Subsequently, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that it subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
An AJ may issue a decision without a hearing, summary judgment, when he or she finds that there are no genuine issues of material fact. 29 C.F.R. � 1614.109(g); Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. Anderson, 477 U.S. at 248. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was 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, we find that Complainant failed to establish a claim of actionable harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on reprisal. P1 stated that she did not harass Complainant at any time, but instead addressed Complainant's abuse of the leave system and negative impact on the facility's operational needs. P1 added that Complainant does not follow instructions and is irregular in attendance.
P1 stated that she denied Complainant's leave request for February 6, 2013 because Complainant left work without her approval. She stated, on February 6, Complainant requested indefinite leave and did not contact the Agency until he returned to work in mid-February. The record contains a leave request, dated February 6, 2013, wherein Complainant requested "indefinite" leave for continuation of pay and cited "Postmaster acting Hostile and Aggressive with Me." P1 stated that Complainant used a significant amount of unscheduled leave in January 2013 and his absence negatively impacted his colleagues and the facility's operational needs. P1 stated that she sent Complainant a Letter of Availability and placed him on AWOL. P1 stated that when Complainant was absent in February, without notice, the Agency Nurse stated that Complainant had to have medical clearance to return to work, which he provided.
P1 stated that Complainant is a "bully" in the workplace. P1 acknowledged that she took Complainant's time card and stored it so that he could not "clock in" before she arrived to work after he had been absent without notice or contact. P1 stated that she treats the two SSAs in her office with dignity and respect. P1 stated that she did not deny Complainant's non-choice vacation and it was processed pursuant to the collective bargaining agreement. P1 stated that she blocked Complainant from delivering mail when he failed to follow instructions, and that Complainant's official personnel folder remains in an Agency vault for privacy. Also, P1 stated that she is the only one with access to the Change of Address system. P1 issued Complainant an LOW and a 7-day suspension for his irregular attendance and work conduct.
Based on the above, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency's actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Further, to the extent that Complainant alleged disparate treatment regarding the LOW, AWOL, or suspension, even if we assume that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected class.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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 (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. 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 8, 2018
__________________
Date
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.
2 The prior EEO complaint settled on February 26, 2013.
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