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

Equal Employment Opportunity Commission

Sep 8, 2016

0120150003 (E.E.O.C. Sep. 8, 2016)

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

Ricky S.,1
Complainant,

v.

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

Appeal No. 0120150003

Hearing No. 510-2012-00375X

Agency No. 4B-006-0010-12

DECISION

The Commission accepts Complainant’s appeal from the Agency’s August 27, 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. 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 City Carrier at the
Agency’s Post Office in Vega Baja, Puerto Rico. Complainant claimed that on an almost daily
basis from November 17, 2011 to December 27, 2011, management officials prohibited him
from talking about his religious faith, singing to himself, or talking at all. Complainant
claimed that management officials did not give him a reason, but that it had a policy called
“Face the Case.” The policy required all employees to avoid excessive talking while casing to
avoid unnecessary disruptions. Complainant alleged that the policy was used to harass him
while other employees were still allowed to talk.

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, 2011, Complainant’s supervisor (S1) instructed Complainant to continue
casing and working instead of talking with other co-workers. Complainant and S1 began
loudly arguing, and S1 instructed Complainant to go to the Postmaster’s office to discuss the
matter. The angry confrontation continued in the Postmaster’s office. During the
confrontation, Complainant closed and stood in front of the door in a manner which made S1
feel threatened. S1 eventually was able to escape the office, left the office in tears, and
reported the incident to the Postmaster. As a result of the incident, S1 placed Complainant on
Emergency Placement in Off-Duty Status. On December 27, 2011, S1 issued Complainant a
7-Day Suspension based on the incident

On December 23, 2011, the Postmaster for the Cabo Rojo Post Office reported to management
that Complainant made an inappropriate comment in Spanish. The same day, the Cabo Rojo
Postmaster reported that Complainant yelled out "beso, beso, beso" (kiss, kiss, kiss) to him
and a carrier while they were talking to each other in the customer parking lot. Both stated
that they were offended by the comment. On February 8, 2012, S1 issued Complainant a
Letter of Warning for Unacceptable Conduct for the comments.

On March 13, 2012, the Postmaster reported to S1 that he had observed Complainant deviate
from his route to go to a residence that was either his own or his mother's and leave his postal
vehicle with mail unsecured and unattended two times that day. This deviation caused
Complainant to incur 70 units of overtime. S1 held a pre-disciplinary interview with
Complainant, and he failed to adequately explain his actions. As a result, S1 issued
Complainant a 14-Day Suspension for Unacceptable Conduct on March 24, 2012.

On April 3, 2012, Complainant requested an EEO pre-complaint package from the EEO
Office. The package arrived at the Vega Baja Post Office on April 10, 2012. On or about
April 28, 2012, a clerk found the envelope containing Complainant’s EEO pre-complaint
package, along with a few other letters, on a Hazmat cage and it was given to Complainant.

On February 22, 2012 (and amended on April 27, 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 national origin (Venezuelan), age (51), and in reprisal for prior
protected EEO activity as evidenced by multiple incidents including, inter alia, he was
prohibited from talking about his religious faith, singing to himself, or talking at all; he was
put on Emergency Placement in an Off-Duty Status without pay, and subsequently issued a 7-
Day Suspension; he was issued a Letter of Warning; he was issued a 14-Day Suspension; and
his supervisor had the EEO pre-complaint package in her possession, but it was not delivered
to him.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

2 The Commission notes that Complainant did not raise religion as a basis of discrimination in
his complaint.
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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 18, 2014.

In the decision, the AJ initially determined that the alleged conduct was insufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence that the alleged incidents were based on discriminatory or retaliatory animus.
Specifically, the Agency contended that from November 17, 2011, to December 27, 2011,
management prohibited Complainant and other employees from talking while working at the
case due to complaints from other employees and excessive joking on the workroom floor.
The Agency maintained that even customers at the retail area heard the workroom floor
conversations. Moreover, Agency management stated that its policy on not talking while
casing the mail was utilized to meet productivity expectations. As such, because of those
concerns, all employees, not just Complainant, were instructed not to talk while casing the
mail. The Agency noted that this instruction became known as the “Face the Case Policy,”
and management gave a service talk officially implementing the policy on December 16, 2011.

With regard to the Emergency Placement, Agency management confirmed that Complainant
was placed on that status after S1 reported that he had locked her in the Postmaster’s office and
that she felt threatened by his behavior. As a result, management immediately placed
Complainant on Emergency Placement in Off-Duty Status and subsequently issued him a 7-Day
Suspension for his conduct.

As to the Letter of Warning, management stated that the Cabo Rojo Postmaster reported that
Complainant twice made inappropriate and derogatory comments to him. Agency management
determined that Complainant’s conduct violated Agency policy and therefore took corrective
action.

Regarding the 14-Day Suspension, the Postmaster observed Complainant deviate from his
route twice, both times towards a residence where Complainant and/or Complainant’s mother
resided. In addition, the Postmaster witnessed Complainant leave his postal vehicle unsecured
and unattended while inside the residence. Agency management contended that Complainant’s
deviation resulted in Complainant incurring 70 units of overtime. Agency management stated
that during the pre-disciplinary interview, Complainant was sarcastic and had a negative
attitude. S1 determined that Complainant’s actions violated established rules and policies. As
a result, S1 issued Complainant a 14-Day Suspension based on progressive discipline.

Finally, as to Complainant’s claim that S1 held his EEO pre-complaint package, the Agency
stated that his incident was the result of the package having been accidentally misplaced. The
Agency explained that the parcel did arrive at the facility on April 10, 2012, but the barcode
was not highlighted. As such, in accordance with established Agency procedures, someone
researched the parcel number, printed out the scan report, and attached the report to the
envelope; however, the envelope was then accidentally misplaced onto a Hazmat cage.
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Thereafter, a clerk found the envelope, along with a few other letters, on the Hazmat cage, and
that when it was discovered, it was promptly turned over to Complainant.

The AJ concluded Complainant’s had only offered speculation and conclusory arguments
which were insufficient to establish that the Agency’s reasons for its actions were pretextual.
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. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ erred in granting summary judgment in favor of the
Agency. Complainant contends that his case is supported by the evidence in the record.
Complainant argues that all the discipline issued by the Agency was the product of untrue and
false evidence. Complainant notes that he filed grievances regarding the Agency’s actions and
the discipline was later rescinded. 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.

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
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that the conduct was taken because of his protected class. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently 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, Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus. For example, S1 stated that all
carriers were instructed to limit talking while casing to avoid unnecessary disruptions, to meet
the District’s productivity expectations, and to improve customer service. ROI, at 278.
Management subsequently held a service talk to implement the “Face the Case” policy. Id. at
304.

Regarding the Emergency Placement, S1 affirmed that she placed Complainant in the off-duty
status based on Complainant’s conduct after she requested that he continue casing instead of
talking with other co-workers. ROI, at 295. S1 stated that Complainant temperament was
erratic and she felt threatened by him when she attempted to have a verbal discussion with him
in the Postmaster’s office. Id. S1 subsequently issued Complainant a 7-Day Suspension for
unacceptable conduct following the incident. Id. As to the Letter of Warning, S1 emphasized
that she issued it after the Cabo Rojo Postmaster and another carrier reported that Complainant
had made disrespectful and offensive comments at them. Id. at 254, 278.

With regard to the 14-Day Suspension, S1 stated that she issued the discipline after the
Postmaster observed Complainant deviate from his route twice and leave his postal vehicle
unsecured and unattended. ROI, at 290-91, 320-21. S1 further explained that Complainant’s
deviation resulted in Complainant incurring overtime. Id. at 291. Complainant failed to
provide an acceptable explanation for his actions during a pre-disciplinary interview. Id. As a
result, S1 issued Complainant a 14-Day Suspension with the Postmaster’s concurrence. Id. at
320-21.

Finally, as to his EEO pre-complaint package, S1 denied that Complainant’s EEO forms were
in her possession. ROI, at 290. The Postmaster explained that the package had a barcode on
it that was not highlighted, and an employee followed procedure by researching the number
and attaching the scan report to it. Id. at 245. A clerk later found the envelope under a few
other letters on the Hazmat cage. Id. The Postmaster stressed that the moment the package
was found, the Office of Inspector General was called to investigate and the package was
delivered to Complainant. Id.

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.
Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence from which a reasonable
fact finder could conclude that the Agency's explanation was pretext for discrimination or
reprisal. As a result, the Commission finds no basis to disturb the AJ's summary judgment
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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 (M0416)

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. The requests 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 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

September 8, 2016
Date