Sherman K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

0120181544 (E.E.O.C. Aug. 8, 2019)

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

Sherman K.,1
Complainant,

v.

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

Appeal No. 0120181544
Agency No. 1C401001217

DECISION

On April 2, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 6, 2018, final decision 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Building Equipment
Mechanic at the Agency’s Evansville Processing and Distribution Center in Evansville, Indiana.
On May 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Caucasian), sex (male), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:

1. On dates to be specified, management and coworkers made derogatory
comments about him;
2. On a date to be specified, he became aware management had been recording
his activities in the supervisor's office;

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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3. On February 15, 2017, he was informed that management was investigating
him;
4. On August 20, 2017, his supervisor was overheard saying that she "sent an
email to all Vice Presidents in the Post Office about ‘his’ (referring to the
Complainant) embezzling and stealing and they did nothing";
5. On September 14, 2017, he learned that a Supervisor had posted defaming,
offensive and derogatory comments and the Agency covertly recorded video
on Facebook; and
6. On November 22, 2017 he became aware that a management official solicited
employees to sue him in January 2018.

In his complaint, Complainant named the Supervisor of Maintenance Operations (S1), a Black
woman, as the discriminating official. She was Complainant’s direct supervisor. S1’s supervisor
was the Manager of Maintenance Operations, a Black male (S2). S1 states that she is aware of
Complainant’s race, sex, and prior EEO activities because she was his supervisor and knows that
Complainant is a union official who has advised other employees to file EEO complaints against
her for the past 3-4 years. She said his actions has caused her to take steps to protect herself
against harassment and that she has endured a hostile work environment. Until the instant
complaint, however, S2 stated that she had no knowledge of Complainant naming her as a
responsible management official.

On May 4, 2017, the Agency dismissed the complaint for failure to state a claim pursuant to 29
C.F.R. § 1614.107(a)(1). Complainant appealed. In EEOC Appeal No. 0120172349 (Sept. 13,
2017), the EEOC reversed the dismissal and remanded the complaint for investigation. After its
investigation, the Agency provided Complainant with a copy of the report of investigation and
notice of his right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

The Agency found that Complainant failed to establish a prima facie case of retaliation. The
Agency noted that, according to the record, Complainant had filed a prior EEO complaint (1 C-
401-0022-07), which closed in September 2007, more than nine years prior to the events at issue.
Thus, the Agency decided that there was no temporal connection between Complainant’s
previous EEO activity and the instant complaint and nothing in the record established a temporal
nexus between other employee EEO complaints that Complainant, as a union representative,
assisted in filing. Finally, the Agency found that Complainant offered no evidence showing that
he was treated less favorably than a similarly situated individual who had not engaged in EEO
activity.

With respect to Complainant’s harassment claims, the Agency noted that Complainant stated that
he discovered in January of 2017, that S1 had made a video of him while he was in official duty
status. Complainant also alleged that, on August 20, 2017, S1 was overheard saying that she
"sent an email to all Vice Presidents in the Post Office about ‘his’ [referring to Complainant]
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embezzling and stealing and they did nothing." Complainant also asserted his objection to S1’s
other alleged comments which included accusations that Complainant had shot up S1’s home,
had driven away in a truck with all the union money in it, and had used a toilet brush to clean his
supervisor’s computer. He also alleged that on September 14, 2017, he learned that S1 had
posted defaming, offensive and derogatory comments about him on Facebook. Lastly,
Complainant alleged that on November 22, 2017, he became aware that S1 was soliciting
employees to sue him.

In his affidavit, Complainant clarified that only S1 made negative comments about him and not
his coworkers. Complainant claimed that S1’s comments caused S2 to investigate him on
February 15, 2017. However, Complainant noted that no corrective or administrative action took
place as a result of this investigation other than that S2 informed him not to take anything off the
supervisor's desk. Although he was not disciplined, Complainant averred that he was harmed by
the harassment because he had lost trust as a Union Steward, is constantly wondering what
comments are being made about him, has become impatient in his personal life, and is constantly
on the defense. Complainant asserted that his race and sex were factors in the harassment
because S1 is a Black female and he is a White male, and she singled him out because of his
prior EEO activity as well as his involvement with a philanthropic organization, the West Side
Nut Club.

S1 stated she could not verify Complainant’s allegations regarding the derogatory comments
about him, but she confirmed that her house was shot with bullets and damaged. She said that
Complainant did not complain to her about the alleged harassment, and indicated that she and
Complainant never talked because he rarely followed any instructions given by Black managers.
S1 also said that she did not know anything about the investigation of the comments because she
was on sick leave at the time but was aware that S2 sent her letter asking her to come into the
office to talk. S1 said that she was advised by a lawyer not to attend the meeting since she had a
pending EEO complaint.

S2 stated that he was made aware of the offensive oral and Facebook comments after he returned
from vacation on or about October 2, 2017. S2 averred that he was aware that S1 had sent an
email to all of the Vice Presidents, but he was not privy to the subject of the email. He attested
that he was not aware of Complainant receiving any explanation about this email or whether any
investigation being conducted. He noted that there was a Pre-Disciplinary Interview (PDI)
scheduled to take place with S1, which she was notified about via Certified Letter (as she was on
Extended Sick Leave), but this was never picked up. S2 said that S1 thereafter put in her
retirement paperwork.

S2 added that he was not aware of the allegation that Complainant was subject to covert video
observation of his activities while working. However, he reported that Complainant was told the
reason for the covert video recording was because items were being stolen off of S1’s desk.
Further, S2 noted that S1 had been given permission by the former Senior Plant Manager to have
her area videotaped. Although the video recorded Complainant removing items from S1’s desk,
S2 said that there was no discipline issued to Complainant. Instead, on February 16, 2017, the
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Labor Office instructed S2 to tell Complainant not to take anything off of a supervisor or
manager's desk in the future.

Additionally, the record contained an Initial Management Inquiry Process (IMP) report
submitted by the Labor Specialist to the Human Resources Manager on April 5, 2016. The IMP
indicated that between March and April 2016, the Labor Specialist interviewed Complainant, S1,
and S2 about the harassment allegations. The Labor Specialist found that: there were video
recordings of not only Complainant but of all personnel that entered S1's office; the camera was
authorized by the former Plant Manager after items were either missing or moved from S1’s
office and desk; and Complainant was recorded taking a document off S1’s desk without
permission. The Labor Specialist also found that S1 had heard from other employees that the
alleged incidents were being done to her, but she denied spreading the alleged rumors as they
were already being said by others.

The record also contained witness statements from two other supervisors who stated that S1 had
made demeaning statements about Complainant and others, and that even though she was asked
to stop the offensive comments about Complainant and his race, such as being him being White
and entitled, she would not stop and even called one of the objectors a racist. One supervisor
averred that he was on sick leave during the time Complainant learned about the video, and was
unaware of the Facebook post, but recalled that S1 had shown him the video of Complainant.
This supervisor said that he reported S1’s behavior to S2. The other supervisor said that he took
no action because he was certain management was already aware of S1’s conduct.

The Agency considered the totality of the evidence and found that the record did not support a
finding that Complainant was subjected to unwelcome verbal or physical conduct as alleged.
The Agency also stated that, even if Complainant were subjected to unwelcome, unwarranted
conduct, the record was devoid of any evidence that management allegedly singled him out or
treated him unfairly because of his protected classes. The Agency explained that, while the
record contained statements confirming that S1 had made demeaning comments about
Complainant, it viewed her comments as more so of a person claiming others were racist and
accusing Complainant of actions that did not have anything to do with his protected classes.
Furthermore, the Agency found that there was no violation of Title VII because the challenged
conduct did not substantially affect Complainant’s work environment since S1 had no direct
contact with Complainant. The Agency said that the vast majority of the acts to which
Complainant objected are common workplace occurrences which occupy the normal scope and
course of industrial relations and partake of daily interactions between a supervisor/manager and
his or her employees. The Agency determined that such actions are not severe or pervasive
enough to constitute a hostile work environment. In sum, the Agency concluded that
Complainant failed to establish an actionable claim of workplace harassment. This appeal
followed.

0120181544

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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Assuming Complainant established a prima facie case of discrimination for all alleged bases, we
find Complainant has not proven by a preponderance of the evidence that he was subject to a
discriminatory hostile work environment. Further, we note that Complainant has not shown that
he was subjected to any discrete adverse action. We find that the Agency took appropriate steps
to address S1’s Facebook posts and purportedly demeaning comments.

CONCLUSION

We AFFIRM the Agency's finding of no discrimination.

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
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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.
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

August 8, 2019
Date