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

Equal Employment Opportunity Commission

Dec 21, 2016

0120141729 (E.E.O.C. Dec. 21, 2016)

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

Stevie R.,1
Complainant,

v.

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

Appeal No. 0120141729

Hearing Nos. 460-2010-00144X;
460-2011-00016X

Agency Nos. 4G-770-0176-09;
4G-770-0229-10

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s March 6, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. 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 North Shepherd Station in Houston, Texas. Complainant’s supervisor (S1) and
Complainant had numerous disputes regarding Complainant being away from his work area.2
S1 believed that Complainant was often not at his case when he should have been or when she

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.

2 S1 was Acting Supervisor until August 2009.
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was looking for him. On March 24, 2009, Complainant informed S1 that he was taking
another employee to conduct union business. Complainant claimed that S1 said, in a voice
loud enough for others to hear, that Complainant had twice lied to her that day. Later the
same day, Complainant submitted a Request for Auxiliary Assistance (3996) form, requesting
two hours of overtime on his route and union time. Based on the mail volume, S1 returned the
form 3996 to Complainant, granting him 26 minutes of overtime and one hour for
Complainant’s union time. Complainant subsequently worked unauthorized overtime that day.

On March 25, 2009, Complainant again submitted a form 3996 requesting two hours and 45
minutes of overtime and union time. Complainant alleged that S1 again called him a liar.
Based on the mail volume, S1 granted Complainant 31 minutes of overtime and 45 minutes of
union time. Complainant completed his route in less time than he requested.

On March 26, 2009, Complainant again requested auxiliary assistance on his route, and S1
denied it. Complainant alleged that S1 told him that he needed a good “pop on the behind.”
Additionally, Complainant claimed that S1 gave away the wrong “split” on his route which
made his route more difficult for him. S1 explained that there is no such thing as a “wrong
split,” and that no part of Complainant’s route is difficult for him or unfamiliar.

On March 27, 2009, S1 informed Complainant that she was going to give him a pre-
disciplinary interview based on his usage of unauthorized overtime. Additionally, Complainant
claimed that S1 would not allow him to use the phone in the unit. Complainant submitted a
form 3996 requesting two and a half hours of overtime and union time. S1 approved 22
minutes of overtime and one hour and 30 minutes for union time. Complainant claimed that
S1 did not account for the amount of Certified Mail pieces, parcels, and Express Mail items.
Further, Complainant alleged that S1 referred to him as “old man” or “that man.”

On March 28, 2009, Complainant claimed that S1 announced in front of other employees that
she was going to give Complainant a pre-disciplinary interview. Complainant submitted a
form 3996 requesting additional time on his route, 90 minutes of EEO time, and union time.
S1 approved 45 minutes of EEO time and 30 minutes for union time. In addition, S1 held a
pre-disciplinary interview with Complainant regarding his usage of unauthorized overtime.

On August 3, 2009, Complainant filed a formal complaint (Agency No. 4G-770-0176-09)
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of race (Caucasian), sex (male), color (White), age (55), and in
reprisal for prior protected EEO activity when:

1. On March 24, 2009, after he informed his supervisor (S1) that he was taking
another employee to conduct union business, S1 made an announcement in the
presence of other employees that Complainant lied to her twice that day. On the
same day, Complainant requested two hours of overtime on his route and was only
granted 1.6 hours;
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2. On March 25, 2009, after S1 approved union time for him, S1 repeatedly called
him a liar in the vicinity of other employees. Subsequently, Complainant informed
the manager of the situation and the manager failed to take appropriate action. On
the same day, complainant requested 2.45 hours of overtime on route and was only
approved 1.16 hours;

3. On March 26, 2009, after he and S1 exchanged words, S1 stated she would like to
“pop” him on his behind. On the same day, S1 denied him time on his route and
gave away the wrong split on his route, thereby making his route more difficult and
time consuming;

4. On March 27, 2009, S1 told him she was going to give him a pre-disciplinary
interview based on unauthorized overtime, and later in the morning would not let
him use the telephone in the unit. On the same day, S1 referred to Complainant as
“that man” and “old man” in the presence of others; and ignored the fact that
Complainant had double the amount of Certified Mail for the day;

5. On March 28, 2009, S1 announced on the workroom floor that Complainant was
going to be given a pre-disciplinary interview and one and one-half hours later,
Complainant was given a pre-disciplinary. Complainant further alleged that S1
ignored his request for ten minutes of assistance on his route, and did not allow him
to deliver an Express Mail piece for which he had to deviate in order to deliver; and

6. On March 28, 2009, he requested 90 minutes of EEO time to act as an EEO
representative for a co-worker and S1 only approved 45 minutes.

On August 31, 2009, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim. Complainant appealed and, in Complainant v.
U.S. Postal Serv., EEOC Appeal No. 0120093869 (Feb. 24, 2010), the Commission affirmed
the dismissal of claim (6) and reversed the dismissal of claims (1) – (5). The Commission
remanded claims (1) – (5) for further processing.

The record shows that management received numerous complaints about S1 regarding her
harsh management style, lack of professionalism, and favoritism. An investigation was
conducted which resulted in a recommendation that S1 receive coaching. In July 2009,
management and the Union agreed that S1 would be removed from the Station and not allowed
to return as an acting supervisor until after a one-year review of her behavior was deemed
acceptable. In April 2010, S1 spent time at the North Shepherd Station to observe its
operations. S1 completed supervisor training and successfully bid back to the North Shepherd
Station. After returning, S1 again had difficulties with her staff. Employees complained about
“bullying,” S1 playing “favorites,” and difficulties getting 3996 forms approved.

On or around May 8, 2010, Complainant submitted a form 3996, and S1 rejected it because
parts of the form were not completed. Complainant claimed that S1 did not enforce this policy
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previously and did not enforce this policy on other employees. Further, Complainant alleged
that S1 threatened him with “constructive discipline” daily. Complainant claimed that S1
publicly threatened to take him into the office and refused to let him talk or write down his
statement once in the office. In addition, Complainant alleged that S1 made loud, derogatory
comments about him and his role in the Union’s food drive. Complainant claimed that S1 told
everyone within earshot that it was Complainant’s fault that the food drive was unsuccessful
because he was always missing when there was work to be done.

On May 19, 2010, Complainant was at the desk using the phone. S1 was unable to use the
phone to page an employee, and raised her voice while standing next to Complainant to get the
employee’s attention. Complainant believed that S1 was screaming while he was on the phone
to harass him.

On or around May 23, 2010, S1 denied part of Complainant’s overtime request and approved
1.21 hours of overtime on his route. Additionally, Complainant was told to absorb 1.75 hours
of safety duties into his route time. Complainant had been assigned to do safety duties as part
of his official duties as Safety Captain.

On June 21, 2010, Complainant filed a second complaint (Agency No. 4G-770-0229-10)
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of race (Caucasian), sex (male), color (White), age (55), and in
reprisal for prior protected EEO activity when:

7. On or about April 10, 2010, a supervisor spent two days at Complainant’s work
unit to intimidate EEO witnesses;

8. On or about April 25, 2010, a supervisor who had been barred from the station was
again assigned there;

9. On or about May 8, 2010, his Request for Auxiliary Assistance form (PS 3996) was
rejected for not being filled out completely and subsequently it was disapproved;

10. During the week of May 10 - 15, 2010, his work time was disapproved and he was
threatened with “constructive discipline;”

11. On or about May 10, 2010, the supervisor was talking loudly and making
derogatory comments about Complainant regarding the food drive;

12. On or about May 19, 2010, while he was at the desk on the telephone, the
supervisor screamed to another employee while standing next to Complainant,
yelled in his face and into the telephone receiver; and

13. On or about May 23, 2010, he was only approved for 1.21 hours of overtime and
the supervisor told him to absorb 1.75 hours of his safety duties into his route time.
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At the conclusion of the investigations, the Agency provided Complainant with copies of the
reports of investigation (ROI-1 and ROI-2 respectively) and notice of his right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ consolidated the complaints, held a hearing
on February 21, 2012, and June 12, 2012, and subsequently issued a decision on February 11,
2014.

In her decision, the AJ determined that the alleged harassing incidents were not sufficiently
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 AJ determined that there was overwhelming, credible evidence that S1 was a
“very intricate supervisor” who had issues with many employees. There were widespread
personality conflicts at the Station while S1 was at the helm. An investigation determined that
lack of communication was the problem. Thus, Complainant’s claims that he was yelled at,
called a liar, and other similar comments did not amount to a legally hostile work environment
based on those categories enforced by the Commission under the federal anti-discrimination
statutes.

Regarding the discrete acts, the AJ assumed arguendo that Complainant established a prima
facie case of discrimination and reprisal and found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. For example, S1 testified that she repeatedly
reminded Complainant of prior conversations and admonishments she had given him. S1
stated that compared to other union stewards, Complainant failed to balance his carrier duties
with his union responsibilities. S1 took issue with Complainant’s “incessant” telephone use
and inability to be found at his work area, especially in the mornings before routes were
carried. The AJ found that Complainant could not refute his heavy EEO case load or
demonstrate that he was not often on the phone or away from his case. Moreover,
Complainant repeatedly received overtime hours and auxiliary assistance, although not always
the amount of time he requested.

The AJ determined that the matters at issue centered on personality conflicts. Complainant
testified that S1 singled him out for poor treatment and that she was such a universally despised
supervisor that the entire staff wanted her removed. Complainant could not adapt to S1’s
management style and would regularly question and challenge her. Despite their difficulties,
Complainant was repeatedly warned, but never officially disciplined. Complainant lost no pay
or rank and his status as a Carrier was not harmed. The AJ noted that by the time of the
hearing, Complainant had been promoted to Acting Supervisor.

The AJ concluded that Complainant failed to show 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.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the evidence shows that he was subjected to a hostile
work environment. Complainant argues that the AJ prejudiced his case by failing to issue a
decision until two years after the hearing. Complainant claims that the AJ ignored evidence of
discrimination and bullying. Further, Complainant alleges that the AJ made several errors in
the admission and disallowance of evidence. Accordingly, Complainant requests that the
Commission reverse the final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether discriminatory intent existed is a factual finding. See
Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held. See 29 C.F.R.
§ 1614.405(a).

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at
§ VI.B. (Aug. 5, 2015).

As an initial matter, the Commission notes that Complainant raised several arguments on
appeal regarding the AJ’s handling of this matter. The Commission notes that EEOC
regulations and Commission precedent provide AJs with broad discretion in the conduct of
hearings and related proceedings. See 29 C.F.R. § 1614.109; see also EEO MD-110, at Ch.
7. The Commission has reviewed the record and finds no abuse of discretion by the AJ.
Furthermore, the Commission is unable to find any evidence of bias, or other reversible error,
resulting from the manner in which the AJ managed and adjudicated this case.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment 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 classes; (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
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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 a protected basis. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

Here, Complainant alleged that based on his protected classes, management subjected him to a
hostile work environment as evidenced by multiple incidents. The Commission finds that the
record does not show that the Agency subjected Complainant to a hostile work environment.
Moreover, 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. The record reflects that the alleged incidents
were more likely the result of routine supervision, managerial discipline, personality conflicts,
and general workplace disputes and tribulations. While the record is clear that Complainant
and S1 had a contentious work relationship; the Commission notes that Title VII is not a
civility code. Rather, it forbids “only behavior so objectively offensive as to alter the
conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S.
75, 81 (1998).

The Commission finds that the record supports the AJ's determination that the alleged incidents
were not based on Complainant’s protected classes. Substantial evidence supports the AJ's
findings of fact, and the Commission discerns no basis to disturb her conclusions of law.
Further, to the extent that Complainant is alleging disparate treatment with respect to his
claims, the Commission finds that he has not shown that the Agency's reasons for its actions
were a pretext for unlawful discrimination or reprisal. As a result, the Commission finds that
Complainant has not established that he was 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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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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).

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

December 21, 2016
Date