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

Equal Employment Opportunity Commission

Jul 24, 2019

0120181240 (E.E.O.C. Jul. 24, 2019)

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
(Southern Area),
Agency.

Appeal No. 0120181240

Agency No. 4G-752-0138-17

DECISION

On February 17, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s February 1, 2018 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a City Carrier at the Agency’s University
Station in Dallas, Texas.

On July 6, 2017, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him based on race (African-American), religion (“Saved”), color
(black), age (born in 1968), and in reprisal for prior EEO activity when, on February 23, 2017, a
management official made inappropriate remarks to him, and instructed him to get “off the
clock.”

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC

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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Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.

In its January 31, 2018 final decision, the Agency found no discrimination was established based
on the evidence developed during the investigation.

The instant appeal followed.

ANALYSIS AND FINDINGS

To establish a claim of hostile environment 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 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 Agency. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also,
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8,
1994).

In other words, 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 – in this case, his race, color, religion,
age or prior EEO activity.2 Only if Complainant establishes both of those elements – hostility
and motive – will the question of Agency liability present itself.

During the investigation into his complaint, Complainant stated that on February 23, 2017, he
was having lunch in the break room when the Station Manager ((African-American, black,
Baptist, year of birth 1963) came in and demanded he clock out and go home. When
Complainant attempted to let her know he had not worked eight hours, the manager responded
that she did not care. According to Complainant, the Station Manager claimed that he was the
“worst and sorriest” carrier, and he responded that she was “sorry” because she wanted to lose
weight and could not. He said that she then called him fat and called his wife a “fat bitch.” Two
supervisors witnessed the encounter and in unsworn statements essentially confirmed
Complainant’s version of events. Complainant stated that he believed the Station Manager did
not talk to white employees in the same manner as she spoke to him.

2 With regard to his retaliation claim, Complainant he has represented other carriers and filed a
number of EEO complaints against the Station Manager. The Station Manager acknowledged
that she was aware of Complainant’s prior EEO activity.
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The Station Manager stated that on February 23, 2017, she did not instruct Complainant to get
off the clock, but rather to leave the break room and go to his route. Complainant’s time and
attendance records for the date in question shows that he worked eight hours. She acknowledged
that she and Complainant made inappropriate comments to each other. The Station Manager
stated that she received a 14-day suspension from upper level management based on the
inappropriate comments she made to Complainant during this incident because she did not
conduct herself appropriately as a manager. She stated that it was her belief that the suspension
was not fair because Complainant was “very disrespectful with me first.”

There is ample evidence of record to show that Complainant and the Station Manager had a long
history of personality clashes, and that the Station Manager made inappropriate remarks to
Complainant on the date in question. Complainant’s testimony about the remarks made by the
Station Manager were corroborated by witnesses and upper level management suspended the
Station Manager as a result of the incident. However, the weight of the evidence does not link
this incident with any discriminatory animus. A case of discriminatory harassment/hostile work
environment is precluded because Complainant failed to establish that the actions of the Station
Manager were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC
Appeal No. 01982923 (September 21, 2000).

CONCLUSION

We have reviewed the record in its entirety, and we AFFIRM the Agency’s finding no
discrimination because the preponderance of the evidence of record does not establish that
discrimination occurred.

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.
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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.

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

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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

July 24, 2019
Date