Norberto G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Mar 18, 2016

0120140027 (E.E.O.C. Mar. 18, 2016)

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

Norberto G.,1
Complainant,

v.

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

Appeal No. 0120140027

Hearing No. 461-2013-00072X

Agency No. 1G-701-0029-12

DECISION

The Commission accepts Complainant’s appeal from the Agency’s August 29, 2013 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. 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 Mail Processing
Clerk at the Agency’s Processing and Distribution Facility in Lafayette, Louisiana. In the
Priority Mail Unit, unsorted raw parcels are dumped onto a conveyor belt. Employees scan
the Priority Mail on the conveyor belt and place them in a large parcel container according to
the last digits of their zip code. Then, the Priority Mail in the containers is sorted further into
Priority Mail sacks. Complainant’s supervisor (S1) has given service talks regarding the
process for sorting parcels in the Priority Mail Unit. On May 16, 2012, S1 watched
Complainant throw a piece of missorted mail in the container of mail being dumped onto the
conveyor belt. S1 instructed Complainant not to do that and to instead take the missorted mail
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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to where it belonged. S1 showed Complainant what to do with the parcels, but Complainant
kept doing what he was doing and eventually told S1 “Let’s go to the office.” S1 and
Complainant then met in the Distribution Operations Manager’s (M1) office where they both
explained what happened. Complainant complained to M1 that S1 had been watching him. S1
explained that he only wanted Complainant to throw the mail and not handle it twice. They
both then returned to their assignment.

From May 7 through 14, 2012, Complainant was sent to work in the Priority Mail Unit,
despite his seniority status, when a junior employee was not. At that time, S1 had a list of the
jobs each employee performed and rotated the Priority Mail assignments from the employees
on this list. S1 was unaware that the collective bargaining agreement required assignments of
employees to the Priority Mail Unit be made by seniority. When S1 learned this, he started
sending employees to the Priority Mail Unit by seniority.

On September 5, 2012, Complainant was instructed to report to work early on overtime.
When Complainant did not report to work for overtime as instructed, a supervisor (S2) handed
a leave slip to Complainant for not reporting to work for overtime as instructed. Any
employee who calls in for an unscheduled absence is required to fill out a PS Form 3971 leave
slip.

On September 14, 2012, the acting supervisor (AS) told Complainant that he could not lean on
the rack and talk to a co-worker (CW1). AS explained that Complainant was preventing CW1
from working and she wanted them to hurry up and pull the DIOS down.

The Flat Sorter Unit has two sections. One section is the Flat Sorter operation and the other is
the 060 Flat Case Manual operation. The facility’s practice was to send out those employees
in the Manual operation to the Priority Mail Unit first if they ran out of mail to case. S1 sent
every employee from the Flat Sorter Unit to the Priority Mail Unit. If the Flat Sorter Unit had
no mail, then every employee in the Flat Unit was sent to the Priority Mail Unit. On two
occasions in October 2012, management officials sent Complainant to the Priority Mail Unit
while he was the senior employee because his Manual operations work was completed.

On June 21, 2012 (and amended on July 18, 2012; September 14, 2012; and October 29,
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)
and in reprisal for prior protected EEO activity as evidenced by multiple incidents including,
inter alia, management watched him; on May 7, 2012 through May 14, 2012, he was assigned
to work in the Priority Unit and a co-worker was not; on May 16, 2012, management
questioned him about miss-thrown mail; on June 20, 2012, management questioned him about
standing in the Manual Unit; on September 5, 2012, he was given a slip for an unscheduled
absence when he did not report for overtime; on September 14, 2012, he was told he could not
speak to another employee and could not lean on the rack and talk; on October 11, 2012, his
supervisor sent him to the Priority Unit when he knew Complainant was the senior employee

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in the Manual Unit; and on October 12, 2012, his manager sent him to the Priority Unit when
he knew Complainant was the senior employee in the Manual Unit.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 August 26, 2013.

In her decision, the AJ initially determined that the alleged incidents were not sufficiently
severe or pervasive to establish a hostile work environment. Additionally, the AJ found that
there was no evidence that any of the conduct at issue was based on Complainant’s race or
prior protected EEO activity. The AJ noted that Complainant essentially relies upon bare
allegations, perceptions, or feelings of harassment about common workplace events involving
managers' observations of his workplace conduct and performance and typical managerial
instructions, directions, or applications of Agency assignment procedures. As a result, the AJ
found that Complainant had not established that he was subjected to discrimination, reprisal, or
a hostile work environment as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ ignored the collective bargaining agreement
which shows a junior employee should have been sent out of the unit before him. Further,
Complainant claims that his supervisor ignored other employees’ attendance issues. Finally,
Complainant contends that other employees were “protected” by management. Accordingly,
Complainant requests that the Commission reverse the final order.

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.

2 The Agency dismissed an additional claim for failure to state a claim. Complainant did not
challenge the AJ’s dismissal while the matter was before the AJ or on appeal; therefore, the
Commission will not address the claim in this decision.

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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.

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, S1 explained that he watched Complainant
on May 16, 2012, because he observed him double handling mail. ROI, at 176. Complainant
continued to double handle mail and S1 simply wanted to know why. Id. Next, with respect
to the Priority Unit assignments, S1 affirmed that he rotated every employee to the Priority
Unit prior to learning that the collective bargaining agreement called for the assignments to be
done by seniority. Id. at 178. From that point on, S1 went by the seniority list in issuing
Priority Unit assignments. Id. Regarding being issued a leave slip for missing scheduled
overtime, S2 explained that on September 5, 2012, management decided to bring in clerks
early on overtime due to high mail volume. Id. at 200. Complainant was on the Overtime
Desired List and was consequently required to work overtime. Id. Complainant did not show
up for scheduled overtime and did not have a valid excused; therefore, he was charged as
Absent on Overtime. Id. AS stated that she told Complainant not to lean on a rack and talk to
CW1 because she needed them to throw mail. Id. at 216. Finally, M1 explained that he sent
Complainant to the Priority Unit on the dates in question because employees were needed
there, Complainant had no mail to throw at the time at the Flat Case Manual operation, and it

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was the facility’s practice to send the employee assigned to the 060 Flat Case Manual operation
to help in the Priority Unit. Id. at 189.

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.

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

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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 18, 2016
Date