Ruben P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jan 31, 2018

0120162171 (E.E.O.C. Jan. 31, 2018)

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

Ruben P.,1
Complainant,

v.

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

Appeal No. 0120162171

Agency No. 4E-852-0161-15

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the May 24, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791
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 City Carrier at the
Agency’s Tempe Annex in Tempe, Arizona. On March 13, 2015, Complainant worked on his
scheduled day off. A supervisor (S1-1) approached Complainant at his case and asked if he
believed he had 30 minutes to help on another route. Complainant angrily responded and yelled
“my route is eight hours!” S1-1 attempted to explain to Complainant that his route usually had
some under-time later in the week. Complainant continued to yell at S1-1 and disrupted the
workroom floor. Other management officials intervened and instructed Complainant to calm
down and return to his case. Complainant refused and continued to disrupt the workroom floor.
The Postmaster eventually escorted Complainant to his work area. The Postmaster explained

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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that S1-1’s question required only a “yes” or “no” response and Complainant responded, “[her]
question is a retarded one.”

On March 19 and 20, 2015, management held investigative interviews with Complainant
regarding the March 13, 2015 incident. Following an investigation, on May 14, 2015,
Complainant’s supervisor (S1-2) issued Complainant a Notice of Proposed Removal for
unacceptable conduct. Complainant filed a response challenging the proposed removal. The
Postmaster of the Sun City facility was asked to review the investigative record as an impartial
official. Following his review, the Sun City Postmaster issued Complainant a Letter of Decision
upholding the removal effective July 18, 2015. An arbitrator later upheld the removal action.

On October 22, 2015, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of
disability and in reprisal for prior protected EEO activity when:

1. On May 27, 2015, he was issued a Notice of Proposed Removal dated May 14,
2015, for unacceptable conduct; and

2. On July 18, 2015, he was issued a Letter of Decision Removal dated June 29,
2015, which upheld the Notice of Proposed Removal dated May 14, 2015.2

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 EEOC
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 management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the Postmaster stated management held
an investigative interview with Complainant and subsequently issued a Notice of Proposed
Removal for his unacceptable conduct when he failed to immediately follow the instructions of
three managers and caused a disturbance on the workroom floor. In his response to the Notice of
Proposed Removal, Complainant claimed that the facts in the notice were false and incomplete;
management provoked the incident; the discipline was untimely and not progressive; and that
management aggravated his medical condition with aggressive behavior. Despite Complainant’s
assertions, management issued the Letter of Decision upholding his removal. The Sun City
Postmaster confirmed that he reviewed the investigative materials and upheld the proposed
removal because Complainant’s conduct was unacceptable and he failed to follow instructions.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. Further, the Agency found that Complainant’s hostile work

2 The Agency dismissed two additional claims pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. Complainant raised no challenges to the dismissal of these claims on appeal;
therefore, the Commission will not address those claims herein.
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environment claim must fail as he failed to show that the Agency’s actions were motivated by
discriminatory or retaliatory animus. As a result, the Agency found that Complainant had not
been subjected to discrimination, reprisal, or a hostile work environment as alleged.
Complainant filed the instant appeal without submitting any arguments or contentions in support.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, on March 13, 2015, S1-1 attempted
to ask Complainant if he could assist on another route. ROI, at 562-64. Complainant responded
angrily, disrupted the workroom floor, and refused to calm down when several management
officials intervened. Id. Management initiated an investigation into the incident. S1-2
attempted to conduct an investigative interview with Complainant and his representative on
March 19, 2015, but Complainant became irate and disrupted S1-2’s questioning. Id. at 555.
S1-2 held a second investigative interview with Complainant on March 20, 2015. Id. at 509,
555-56. After reviewing Complainant’s interview and witnesses’ statements, S1-2 concluded
that Complainant failed to follow the direction of several management officials and caused
disruption to the operation by yelling at S1-1. Id. at 551. As a result, S1-2 issued Complainant a
Notice of Proposed Removal for unacceptable conduct on May 14, 2015. Id. at 550.
Complainant provided a written response to the proposed notice disputing the facts, alleging that
the discipline was not timely or progressive, and claiming that management aggravated his
condition through its aggressive behavior. Id. at 565. The Sun City Postmaster reviewed the
investigative materials and issued a Letter of Decision upholding the removal action. Id. at 566-
69. In so doing, the Sun City Postmaster noted that Complainant had numerous past disciplinary
actions against him which had been ineffective in correcting his deficiencies. Id. at 567.
Complainant filed a grievance regarding the removal action which was later upheld by an
arbitrator as based on “just cause.” Id. at 522-35.

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Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose to not request a hearing, 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. The Commission
finds no persuasive evidence that Complainant’s protected classes were a factor in any of the
Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by
a preponderance of the evidence that the Agency’s reasons were not the real reasons and that
discriminatory or retaliatory animus was a factor in its actions. Complainant failed to carry this
burden. As a result, the Commission finds that Complainant has not established that he was
subjected to discrimination or reprisal as alleged.3

Hostile Work Environment

Finally, with respect to Complainant's hostile work environment claim, the Commission finds
that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993),
Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a
hostile work environment is precluded by our determination that Complainant failed to establish
that any of the actions taken by the Agency were motivated by discriminatory animus. See
Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).

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.

3 The Commission notes that although Complainant referenced a reasonable accommodation in
his response to the Agency’s proposed removal, he did not claim that he was denied reasonable
accommodation in his formal complaint or at any point during the investigation.
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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).

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.

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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

January 31, 2018
Date