Octavio C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Oct 3, 2018

0120170105 (E.E.O.C. Oct. 3, 2018)

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

Octavio C.,1
Complainant,

v.

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

Appeal No. 0120170105

Agency No. 4G-780-0221-15

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the August 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. 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 Carrier Technician,
Q-CC-02, at the Agency’s Post Office in Pecos, Texas. Complainant alleged that the Postmaster
attempted to assign him duties that were actually the Postmaster’s duties and outside of his craft.
For example, Complainant claimed that the Postmaster gave him a direct order to complete
inventory and stamp ordering tasks instead of performing them himself. Complainant alleged
that the Postmaster would yell and curse at him to perform his duties. Complainant believed that
the Postmaster was trying to get Complainant to do his duties because of his lack of knowledge,
laziness, and to take advantage of his position.

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 an unspecified date, Complainant claimed that the Postmaster stated to the letter carriers “I
will fire all of y’all before you get rid of me.” Complainant stated that he did not know why the
Postmaster made the statement, but it might have been because he was under pressure from
upper management and because of discrimination against employees.

On July 28, 2015, the Office-in-Charge held a stand-up talk and asked the Postmaster to add
some comments. The Postmaster initially talked about attendance, but then gave the employees
a direct order that they needed to speak English while in the office and that Spanish was not
allowed to be spoken. Another carrier questioned the direct order and the Postmaster responded
that they were in the United States when they crossed the border and that English was the official
language. The Operations Manager (M1) arrived shortly after the incident and employees
reported the incident to him. M1 immediately apologized to the employees and informed them
that management would investigate the matter.

On July 30, 2015, a management inquiry was initiated regarding the incident. The Postmaster
was subsequently transferred to another facility and placed on administrative leave while the
matter was being investigated. Based on the inquiry, management concluded that the Postmaster
had acted inappropriately by telling employees that they could not speak Spanish. On March 31,
2016, the Postmaster was issued a Notice of Proposed Adverse Action – Removal.

Complainant alleged that after the Postmaster was placed on administrative leave in August
2015, he constantly followed Complainant and another carrier. Complainant reported the
incident to management and was instructed to call the police if he saw the former Postmaster
following him.

On October 27, 2015 (and subsequently amended), Complainant filed a formal complaint
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the basis of race/national origin (Latin-American/Hispanic)2 as evidenced by
multiple incidents including, the Postmaster tried to get him to do his work; the Postmaster told
the office that no one would be allowed to speak Spanish; the Postmaster followed him and
another carrier after he was “put off the clock;” the Postmaster stated “I will fire all of y’all
before you get rid of me;” and the Postmaster has spoken to him in an angry tone which included
cursing.

On November 10, 2015, the Agency issued a final decision dismissing the complaint pursuant to
29 C.F.R. § 1614.107(a)(1) for failure to state a claim and pursuant to 29 C.F.R.
§ 1614.107(a)(2) for raising a claim that was not brought to the attention of the EEO Counselor.
Complainant appealed and, in Octavio C. v. U.S. Postal Serv.,

2 The Commission notes that Complainant stated that his race is “Latin-American/Hispanic.”
The Commission considers the term “Hispanic” to denote a national origin rather than a race.
Nonetheless, claims of race discrimination are analyzed under the same framework as claims of
national origin discrimination.
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EEOC Appeal No. 0120160986 (Apr. 19, 2016), the Commission reversed the Agency’s
dismissal and remanded the matter for further processing.

At the conclusion of the investigation of the remanded claims, 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).3 Complainant requested a FAD. In accordance with
Complainant’s request, 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 found that there was no
evidence that the conduct at issue was based on discriminatory animus. With respect to the
Postmaster ordering Complainant to do his duties, the Agency noted that Complainant stated that
he believed that the Postmaster asked him to do his work because the Postmaster took advantage
of his position and was lazy and lacked knowledge. Regarding the No-Spanish rule, OIC opined
that the Postmaster believed that the employees were speaking in Spanish deliberately so that he
could not understand them. OIC speculated that the Postmaster did not intend to disparage
Spanish-speaking or Hispanic employees, but that he just wanted to be aware of what was going
on and that he could not do so if they were speaking Spanish. M1 added that he believed that the
Postmaster made the remark because he did not understand Spanish and wanted to ensure he
knew what was going on at his post office.

Even assuming that Complainant established that the incidents alleged were motivated by
discrimination, the Agency determined that management promptly took corrective action by
removing the Postmaster from the station and disciplining him. Thus, the Agency found that
there was no basis to impute liability. Accordingly, the Agency concluded that Complainant’s
hostile work environment claim failed. 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).

3 The Postmaster did not submit an affidavit during the investigation. The EEO Investigator
noted that the package containing the request for an affidavit sent to the Postmaster was returned
as undeliverable with a sticker that indicated “Return to Sender Unable to Forward.”
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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 race or national origin. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

The Commission notes that Complainant chose not to request a hearing; therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on his race and/or national origin, management officials
subjected him to a hostile work environment. Complainant alleged several incidents of what he
believed to be discriminatory harassment. Specific to the Postmaster’s directive, the
Commission stresses that EEOC guidelines on English-only rules, found at 29 C.F.R. § 1606.7,
state that an employer may require that employees speak English at certain times in the
workplace if the employer can show that the rule is justified by “business necessity” at those
times. 29 C.F.R. § 1606.7(b). See generally, EEOC Enforcement Guidance on National Origin
Discrimination, Directive No. 915.005, (Nov. 18, 2016). Although there is no dispute that
Complainant and other employees were instructed by the Postmaster to not speak Spanish in the
workplace, Complainant did not present sufficient evidence to prove that this occurrence,
together with the other incidents alleged, was sufficiently severe or pervasive to establish a
hostile work environment.

Furthermore, the Commission finds that the Postmaster’s instruction to the Pecos Post Office
employees to refrain from speaking Spanish was short-lived and the effects were, therefore, quite
limited and immediately corrected. Additionally, there is no evidence that Complainant or any
other employee was disciplined for speaking Spanish. The record shows that when upper
management officials learned that the Postmaster had unilaterally instructed employees to not
speak Spanish, the Agency officials immediately rescinded the instruction and removed the
Postmaster from the facility. ROI, at 134-37, 148-49. In addition, management officials
reassured employees that the Agency did not condone or support the Postmaster’s statement. Id.
at 149. With respect to his claim that the Postmaster followed him, Complainant stated that
management advised him to contact the police if the Postmaster continued this behavior. Id. at
92. Complainant did not allege that the Postmaster continued the behavior following his report
to management. Thus, under the specific circumstances present, the Commission finds that the
Agency took appropriate action to fully and effectively correct the effects of the Postmaster’s
inappropriate conduct. Accordingly, the Commission finds no basis to impute liability to the
Agency.

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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

October 3, 2018
Date