Norris D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jul 20, 2017

0120151166 (E.E.O.C. Jul. 20, 2017)

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

Norris D.,1
Complainant,

v.

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

Appeal No. 0120151166

Agency No. 1B-061-0018-14

DECISION

The Commission accepts Complainant’s appeal from the December 29, 2014, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 FAD.

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 Center in Providence, Rhode Island. On
January 13, 2014, Complainant claimed that he reported to work on an automation machine and
his partner started running mail on the machine. Complainant alleged that the machine kept
jamming so he called for an Electronic Tech, who showed up 20 minutes later. Complainant
stated that he started moving racks around, putting trays on the racks, and labeling the trays
while the Electronic Tech was fixing the problem. Complainant claimed that his supervisor (S1)
showed up and asked him how many pieces they had run. Complainant claimed he stated that he
had not run any pieces because the machine was down. Complainant alleged that S1 asked him

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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what he had been doing for an hour and a half and that he owed him an hour and a half of work.
Complainant claimed that S1 then asked him his age and subsequently directed him to leave the
building; however, when he started to leave, S1 told him to come back.

On February 5, 2014, S1 held an investigative interview with Complainant regarding his
attendance. Complainant had accumulated several unscheduled absences and failed to provide
an acceptable explanation for his attendance. As result, on February 18, 2014, S1 issued
Complainant a Letter of Warning for failure to meet the requirements of his position. The Letter
of Warning was reduced the next day to an official discussion.

On or about April 25, 2014, Complainant needed an insurance form to be verified and signed by
management to receive benefits from a private disability insurance policy. Complainant gave the
form to a Union official who gave it to a supervisor (S2) to sign. S2 initially refused to sign the
form, believing that it was incomplete. S2 subsequently signed the form on May 7, 2014.

On April 14, 2014, Complainant completed a PS Form 3971 leave slip requesting leave without
pay (LWOP) for his absence for surgery. Complainant alleged that he received a paystub while
he was out of work indicating that he was paid annual and sick leave for his absence.
Complainant was charged 40 hours of paid leave in Pay Period 14 and an additional 40 hours of
paid leave in July 2014, instead of LWOP. Complainant claimed that management officials
disregarded all of the submitted documents and he was not provided a reason for being charged
paid leave.

On April 25, 2014 (and amended on June 4, 2014), 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 (Hispanic)2, disability, age (59), and in reprisal for prior
protected EEO activity as evidenced by multiple incidents including, inter alia, on January 13,
2014, his supervisor raised his voice to him, questioned him about his age, and directed him to
leave the building; he was issued a Letter of Warning for failure to meet the attendance
requirements of his position; his supervisor refused to sign a form he needed for his private
disability insurance; and he submitted a PS Form 3971 requesting Leave Without Pay (LWOP)
for his absence, but management charged him annual leave and sick leave.

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). 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. Further, the Agency concluded that

2 The Commission considers the term “Hispanic” to denote a national origin rather than a race.
In any event, the same analytical frameworks apply to claims of race discrimination as to claims
of national origin discrimination.
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Complainant failed to show that management’s actions were motivated by discrimination or
retaliatory animus. For example, S1 admitted raising his voice when he asked Complainant why
the mail on the machine had not been run yet even though Complainant started working one and
half hours earlier. S1 stressed that when he initially saw Complainant, he was sitting down
playing with his iPod with no mail being run, which upset him because he was concerned about
the mail getting out on time. S1 stated he asked Complainant how old he was because he is an
adult and should have contacted a supervisor about the machine being down for that length of
time. S1 affirmed that he told Complainant to get out of here, meaning he should see a Union
steward. S1 explained that Complainant was not directed to leave the building, but rather he had
not made himself clear and Complainant misunderstood him.

With respect to the Letter of Warning, S1 affirmed that he issued it because Complainant’s
attendance was unsatisfactory. S1 stated that Complainant had his scheduled two days off, then
annual leave for the Super Bowl, and then called out sick the next day. S1 confirmed that the
Letter of Warning was reduced to an official discussion because he was new to being
Complainant’s attendance supervisor and wanted him to understand that attendance was
important.

Regarding the private disability insurance form, S2 stated that the form was presented to him by
a Union official and was incomplete. S2 affirmed that he informed the Union official that he
needed to see the whole packet before he signed his name to it. S2 confirmed that once it was
provided to him on May 7, 2014, he signed it.

Finally, as to his LWOP request, S2 stated that Complainant’s leave slip had a start date of April
15, 2014, but no end date. S2 affirmed that Complainant was required to call the automated line
and request what type of leave he wanted; however, he failed to do so and errors occurred. The
Agency determined that the record showed that Complainant was granted LWOP from April
2014 through August 3, 2014, except for 80 hours. Complainant's pay stub for Pay Period 10
2014 indicated that he was paid 20 hours of annual leave and 20 hours of sick leave and charged
40 hours of LWOP during the period of April 19, 2014 through May 2, 2014. Complainant’s pay
stub for Pay Period 13 2014 indicated that he was paid 40 hours of annual leave and charged 40
hours of LWOP during the period of May 31, 2014 through June 13, 2014.

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. The instant appeal
followed.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends that Agency officials were untruthful during the investigation
and the objective record evidence contradicted their statements. Complainant challenges the
investigator’s decision not to interview his requested witnesses and asserts that the record was
not thoroughly developed. Further, Complainant claims that the FAD contains factual and legal
conclusions. Complainant argues that the record evidence shows that Agency officials
discriminated and retaliated against him. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission will address Complainant’s dissatisfaction regarding the
investigation of his complaint. Complainant claims on appeal that the investigator assigned to
investigate his complaint made several errors, and that the investigation was incomplete. Upon
review of the entire record, the Commission is not persuaded that the investigation into
Complainant’s complaint was incomplete or improper. Complainant failed to request a hearing,
a process which would have afforded him the opportunity to conduct discovery and to cure
alleged defects in the record. Thus, despite the above referenced arguments, the Commission
determines that the investigation was properly and adequately conducted.

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.

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.
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Here, Complainant asserted that based on his protected classes, he was subjected 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 the conduct alleged was
insufficiently severe or pervasive to establish 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, and general
workplace disputes and tribulations. For example, with regard to the January 13, 2014, incident,
S1 admitted that he raised his voice at Complainant; however, he did so after seeing Complainant
sitting down and playing with his iPod, with no mail being run. ROI, at 123-24. S1 stated that
he mentioned Complainant’s age only to point out that he was not a child and should have
known that he needed to contact a supervisor about the machine being down. Id. at 122. S1
added that he was upset that the mail was not run and they had lost an hour and a half running
time. Id. S1 stated that Complainant misunderstood him when he told him “get out of here” and
what he meant was for Complainant to go see Union steward. Id.

With respect to the Letter of Warning, S1 stated he issued the Letter of Warning because he had
accumulated several unscheduled absences. ROI, at 125, 182-83. S1 noted that he had just
become Complainant’s attendance supervisor and wanted to emphasize to Complainant that his
attendance was important. Id. at 126. S1 noted that Letter of Warning was later reduced to an
official discussion. Id. at 126, 184.

As to the disability insurance form, S2 affirmed that he was presented with a form by a Union
official that was incomplete and missing pages. ROI, at 144. S2 stated that he informed the
Union official that he needed to see the whole packet before he would complete and sign it. Id.
Once the missing information was provided, S2 signed it on May 7, 2014. Id. Finally, regarding
the LWOP issue, S2 asserted that Complainant submitted a leave slip requesting LWOP with a
start date of April 15, 2014, but no end date or number of hours. Id. at 147, 197. The record
indicates that Complainant was charged LWOP from April 25, 2014 through August 3, 2014,
except for 80 hours. Id. at 189. S2 explained that it was Complainant’s responsibility to follow
policy and call the automated line to make the correct selection for leave type and his failure to
do so resulted in errors. Id. at 147.

The Commission finds that Complainant has not shown that he was subjected to a hostile work
environment. Moreover, to the extent Complainant claims that he was subjected to disparate
treatment, the Commission finds that Complainant failed to show that the Agency’s explanation
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.

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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.
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).

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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

July 20, 2017
Date