Wilbert W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 6, 2018

0120162620 (E.E.O.C. Sep. 6, 2018)

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

Wilbert W.,1
Complainant,

v.

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

Appeal No. 0120162620

Agency Nos. 4E-980-0062-14,
4E-980-0026-15

DECISION

On August 6, 2016, 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
July 11, 2016, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as an Automotive Technician, Level P-08, at the Agency’s Vehicle
Maintenance Facility (VMF) in Tacoma, Washington. On October 1, 2014, Complainant filed
Complaint No. 4E-980-0062-14, in which he alleged that the VMF Manager subjected him to a
hostile work environment because of his disability (high blood pressure) when:

1. On or about November 8, 2013, Complainant became aware that he would not be promoted
to a level 9 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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2. On November 8, 2013, Complainant was put off the clock for a medical condition and not
provided light duty.

3. On an unspecified date in November 2013, Complainant was not afforded a 204-B training
detail.

This complaint included other incidents as well. The Agency dismissed the entire complaint on
various procedural grounds and Complainant appealed. On March 6, 2015, Complainant filed
Complaint No. 4E-980-0026-15, in which he alleged that he was subjected to a hostile work
environment because of his disability (high blood pressure) and in reprisal for having filed
Complaint No. 4E-980-0062-14 when:

4. On or about November 19, 2014, the VMF Manager advised him to request an
accommodation from the District Reasonable Accommodation Committee (DRAC) to
extend the period to treat his high blood pressure in order to qualify for a Commercial
Driver’s License (CDL).

This second complaint set forth an additional incident that was dismissed as duplicative of incident
(1) in Complaint No. 4E-980-0062-14. As with the earlier complaint, the Agency dismissed
Complaint No. 4E-980-0026-15 in its entirety, and Complainant appealed. In Wilbert W. v. U.S.
Postal Service, EEOC Appeal Nos. 0120150842 & 0120151811 (December 13, 2015), the
Commission consolidated the two complaints, remanded incidents (1) through (4) for processing,
and affirmed the Agency’s dismissal of the remaining incidents set forth in both complaints.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29
C.F.R. § 1614.108(f), 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.

Incidents (1) & (2): On October 30, 2013, Complainant bid on a level P-09 Lead Automotive
Technician position. IR 441, 444. Complainant averred that on November 8, 2013, the VMF
Manager withdrew Complainant’s bid, put him off the clock, and failed to provide him with light
duty. The VMF Manager averred that he withheld action on Complainant’s promotion to P-09
because Complainant did not pass a physical examination that was a prerequisite to obtaining a
CDL, and that the CDL was a requirement for all Level P-09 Automotive Technicians at the
Tacoma VMF. IR 346, 387, 558-59. A Driver Safety Instructor averred that on November 8,
2013, he found Complainant reporting chest pain and drove him to his doctor’s office. IR 394,
398. An ensuing medical examination disclosed that Complainant had high blood pressure, which
prevented him from passing the CDL physical. IR 398. Upon the recommendation of a contract
physician, Complainant was taken off the clock and offered light duty assignments. IR 350-51,
378, 446-47, 451, 454. Under the guidance of his doctor, Complainant embarked upon a regimen
to lower his blood pressure. He succeeded in doing so by April of 2015 and on June 27, 2015, he
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received his promotion to Level P-09, with his seniority being computed retroactive to July 27,
2013. IR 346-48, 376, 386, 417, 490-94, 500.

Incident (3): Complainant averred that at some point during November of 2013, the VMF Manager
and other management officials failed to provide him with opportunities to serve as a 204B Acting
Supervisor. The VMF Manager responded that his workforce was too short-handed to pull people
from the shop floor for management training. IR 353, 355-56.

Incident (4): Complainant averred that, on or about November 19, 2014, the VMF Manager
advised him to go before the DRAC and request a reasonable accommodation in the form of an
extension of the 60-day period during which he needed to obtain his CDL. Complainant did not
allege that the VMF Manager denied his request for a reasonable accommodation. Rather, he
appears to be asserting that the VMF Manager threatened to transfer him to the Seattle VMF or
terminate him if he was not successful in using the reasonable accommodation process to obtain
his CDL. The VMF Manager averred that Complainant had asked what his options were in the
event that he did not obtain his CDL by the expiration of the 60-day period. In particular, the VMF
Manager averred that when Complainant informed him that his physician had recommended
surgery to correct his blood pressure condition, he advised Complainant to request a reasonable
accommodation from the DRAC in the form of an extension of the time period necessary to obtain
the CDL. He averred that he had further advised Complainant that, in the event that he was unable
to acquire the CDL, the Agency would have no choice but to transfer him to the Seattle VMF,
where the Automotive Technicians were at Level P-08 and did not need a CDL, or to terminate his
employment. IR 356. According to the VMF Manager, Complainant acknowledged that he
understood the options that were presented to him and had agreed to go to the DRAC. IR 357,
502.

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”).

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 imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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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).

To ultimately prevail on his harassment claim, Complainant must prove that the incidents occurred
because of a protected basis. Beyond motive, Complainant must show that S1 had subjected him
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. Since Complainant has also
alleged reprisal, he must prove that the VMF Manager’s actions were harmful to the point that they
could dissuade a reasonable person from making or supporting a charge of discrimination.
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). See also EEOC
Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3)
& n. 137 (Aug. 25, 2016). Only if Complainant satisfies his burden of proof with respect to all of
these elements, motive and either hostility or chilling effect, will the question of Agency liability
for discriminatory or retaliatory harassment present itself.

With regard to the first element of his harassment claim, Complainant claims entitlement to
Rehabilitation Act protection by virtue of having high blood pressure and, as to incident (4), for
having filed EEO Complaint No. 4E-980-0062-14. He characterizes his blood pressure condition
as a disability. For purposes of analysis we will assume that Complainant is an individual with a
disability. Next, we find that Complainant is a qualified individual with a disability by virtue of
the fact that the VMF Manager deemed him able to perform the essential functions of a Level P-
09 Automotive Technician even though he did not yet possess his CDL. IR 398. Accordingly, we
find that Complainant has satisfied the first element of his hostile environment claim. We would
also agree that the conduct of the VMF Manager in the various incidents identified by Complainant
was unwelcome from his own subjective perspective, which is enough to satisfy the second
element. See Floyd L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120150737 (Apr. 27,
2017).

In order to establish the third element of a claim of discriminatory harassment, Complainant must
show that in taking the actions that comprise his harassment claim, the VMF Manager relied on
considerations of his disability and previous EEO activity that are expressly proscribed by the
Rehabilitation Act. See Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120142387
(Mar. 29, 2016). When asked by the EEO investigator why he believed that his disability was a
factor in the incidents, he responded that the incidents occurred because of his high blood pressure.
IR 261, 265, 268, 272. Regarding incident (4), Complainant averred that he was threatened with
transfer or termination after he had appealed the Agency’s dismissal of Complaint No. 4E-980-
0062-14 to the Commission. Beyond these conclusory assertions, however, Complainant has
presented neither affidavits, declarations, or unsworn statements from witnesses other than himself
nor documents that expose any weaknesses, inconsistencies, or contradictions in the explanations
for the various incidents provided by the VMF Manager to such an extent that a reasonable fact
finder could rationally find those explanations unworthy of credence. See Opare-Addo v. U.S.
Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration
denied, EEOC Request No. 0520080211 (May 30, 2008).
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Even if Complainant’s claim somehow survived the third prong of the harassment analysis, it
would not survive the fourth. In order to establish the fourth element, Complainant would have to
show that the VMF Manager’s actions were so severe or pervasive such that a legally hostile work
environment existed. The conduct alleged to constitute harassment should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Complainant must
bear in mind, however, that anti-discrimination statutes are not general civility codes designed to
protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998); see also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332
(Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty
annoyances between an alleged harasser and a Complainant do not rise to the level of harassment).
Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale
v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).

Here, all of the incidents that Complainant characterizes as harassment were nothing more than
routine workplace interactions between Complainant and the VMF Manager. Moreover, the
incidents pertaining to the promotion and the light duty request did not even occur in the manner
described by Complainant. Regarding the promotion, Complainant’s promotion to Level P-09 was
not withdrawn or revoked. It was delayed until Complainant obtained his CDL and his seniority
was back-dated to July 2013. Regarding the light duty request, Complainant was, in fact, offered
light duty by the VMF Manager on the same day that he went to see his doctor. Both Complainant
and the VMF Manager signed the memorandum documenting the light duty offer. We therefore
find, as did the Agency, that none of the incidents were severe or pervasive enough, either singly
or collectively, to rise to the level of harassment. And because Complainant has not established a
connection between his disability or EEO activity and those incidents, supra, no further inquiry is
necessary as to whether those incidents constitute separate acts of discrimination under disparate
treatment theory. Tynisha H. v. Dept. of State, EEOC Appeal No. 0120141395 (March 17, 2017).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding that Complainant did not establish that he was discriminated against as
alleged.

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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

September 6, 2018
Date