Nigel S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Apr 8, 2016

0120142839 (E.E.O.C. Apr. 8, 2016)

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

Nigel S.,1
Complainant,

v.

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

Appeal No. 0120142839

Hearing No. 430-2013-00308X

Agency No. 1K-281-0043-12

DECISION

The Commission accepts Complainant’s appeal from the Agency’s July 17, 2014 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Custodian at the
Agency’s Charlotte Processing and Distribution Center in Charlotte, North Carolina. On
September 26, 2012, Complainant visited the Union Steward to request that the Union file
grievances on his behalf. Complainant became upset during the meeting and yelled obscenities
at the Union Steward. Following the incident, on October 11, 2012, Complainant’s supervisor
(S1) and the Tour 2 supervisor (S2) conducted an investigative interview with Complainant.
After the investigative interview, S2 issued both Complainant and the Union Steward Letters of
Warning for improper conduct for the incident.
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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On November 29, 2012, Complainant was called into S1’s office for a review of his
attendance. Complainant became upset during the meeting and left the office despite S1’s
order for him to stay. In addition, in December 2012, S1 instructed Complainant to clean up
dust on the workroom floor. Complainant refused claiming that the dust could contain
asbestos. S1 informed Complainant that the dust did not contain asbestos and was simply
concrete dust from where holes had been drilled. Complainant still refused to clean up the
dust. S1 conducted an investigative interview of Complainant on December 13, 2012. On
January 8, 2013, S1 issued Complainant a Seven-Day Suspension based on the November and
December incidents.

On or about January 12, 2013, Complainant claims that S1 issued him a change of schedule at
a time he intended to take vacation. In addition, Complainant alleges that on one occasion in
April 2013, S1 assigned him the hardest route while the regular custodian on the route was
assigned as a “floater.” Complainant further claims that he has been paged to the manager’s
office for no reason on several occasions and that since September 2012, he has not been
allowed to work as the Group Leader or perform 204B duties.

On January 8, 2013 (and amended on April 12, 2013), 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), age (54), and in reprisal for
prior protected EEO activity when:

1. On October 11, 2012, he was subjected to an investigative interview without
representation, and, subsequently, on November 1, 2012, he was issued a Letter of
Warning for “Improper Conduct;”

2. On January 8, 2013, he was issued a Notice of 7-Day Suspension; and

3. Since September 5, 2012, and continuing, he was subjected to a hostile work
environment pertaining to work performance, assignments, schedules, and
inappropriate behaviors.2

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 Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on July 10, 2014.

2 The Agency dismissed several additional claims for untimely EEO counselor contact and for
failure to state a claim. Complainant did not challenge these dismissals on appeal; therefore,
the Commission will not address them in this decision, but will consider the claims as
background evidence in support of Complainant's overall hostile work environment claim.

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In the decision, the AJ determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ concluded that there was no
evidence that any of the alleged incidents were based on discriminatory or retaliatory animus.
As a result, the AJ found that Complainant had not been subjected to discrimination, reprisal,
or a hostile work environment as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. Complainant filed the instant appeal without submitting any
arguments or contentions in support.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

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.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on his protected classes,
he was subjected to a hostile work environment as evidenced by multiple incidents. Construing
the evidence in the light most favorable to Complainant, the Commission agrees with the AJ
that Complainant has not shown he was subjected to a hostile work environment. The record
reflects that the alleged incidents were more likely the result of routine supervision, personality
conflicts, and general workplace disputes and tribulations.

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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, regarding the Letter of Warning, S2
explained that he issued Complainant a Letter of Warning for improper conduct based on
Complainant’s role in the verbal altercation with the Union Steward. ROI, at 194. S2 noted
that he issued both employees Letters of Warning for the incident. Id. S2 further added that
Complainant objected to another Union official acting as his steward during the investigative
interview because he believed she had a conflict of interest; however, she ultimately was
present at the interview. Id. With respect to the Seven-Day Suspension, S1 affirmed that he
issued it based on Complainant’s belligerent behavior and insubordination during an attendance
review in November 2012, and his failure to follow instructions to clean up dust in December
2012. Id. at 174-75.

In addition, Complainant alleged that he was “written up” for not attending a waxing machine
demonstration in October 2012. S1 noted that while it would have benefited Complainant to
attend, no one, including Complainant, was written up for not attending. ROI, at 180. With
respect to Complainant’s claims about his work assignments, S1 confirmed that Complainant is
an unassigned regular employee and may be assigned to any duties within the scope of his job
assignment. Id. at 181. S1 noted that Complainant normally did not like to work outside;
therefore, on the date in question, he assigned Complainant to work inside and assigned outside
duties to another employee who did not mind working outside. Id. at 181. Further, S1
explained that when the Group Leader is not on duty, he performs whatever supervisory duties
are needed in her absence rather than assign the higher-level work to another employee. Id.
Finally, with respect to Complainant’s schedule change, S1 affirmed that Complainant’s
scheduled days off were changed to fill a vacant assignment, but that Complainant was still
able to take his scheduled vacation. Id. S1 noted that Complainant took sick leave at the
beginning and end of his vacation. Id.

The Commission finds that Complainant has not proffered any evidence from which a
reasonable fact finder could conclude that the Agency's explanation was a pretext for
discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's
summary judgment decision finding 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 order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

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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
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

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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

April 8, 2016
Date