Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Feb 7, 2013

0120111486 (E.E.O.C. Feb. 7, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.

Appeal No. 0120111486

Hearing No. 490-2010-00185X

Agency No. 4H-370-0013-10

DECISION

On January 20, 2011, Complainant filed an appeal from the Agency’s December 15, 2010 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Custodian at the
Agency’s Post Office in Jackson, Tennessee. In 2006, when he was transferred to Jackson,
Complainant initially had a good relationship with an individual who became his supervisor
(S1) but sometime in 2008, the relationship soured and became antagonistic, characterized by
vulgar language and somewhat constant conflict. Complainant, S1, and the overseeing
manager were of the same race and color. S1 was approximately 7 years younger than
Complainant while the manager was older than Complainant.

On February 17, 2010, Complainant filed an EEO complaint alleging that the Agency harassed
him on the bases of race (Caucasian), color (White), age (55), and in reprisal for prior
protected EEO activity when management adjusted his clock rings and his leave balances;
denied him changes of schedule and requests to waive lunch; called him a “psycho” and
singled him out during a meeting; accused him of harassing a fellow employee; subjected him
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to investigative interviews; charged him Leave Without Pay; and issued him Letters of
Warning as well as a Seven Day Suspension for Unsatisfactory Performance.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
his request. Consequently, 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. This appeal followed.

ANALYSIS AND FINDINGS

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, i.e. in this case, his race, color, age or
reprisal. Only if complainant establishes both of those elements, does the question of the
Agency’s liability for harassment present itself.

Upon review of the record, we are unable to identify any evidence from which a reasonable
fact finder could conclude that management’s actions were motivated by Complainant’s race,
color, age or prior protected activity. We note several explanations for the Agency’s actions.
For example, management had to adjust Complainant’s clock rings and leave because he
regularly did not follow the rules regarding the requirement to take a lunch break unless he had
asked in advance for a lunch waiver. In addition, the Letters of Warning and the suspension
were all rescinded once Complainant’s leave was approved for Family Medical Leave Act
coverage. With regard to the harassment accusation, the record supports a finding that other
employees were concerned by the way Complainant treated a female employee. They brought
their concerns to management. Management inquired of the female employee who stated that
she was not being harassed by Complainant. No discipline resulted.

Also, as noted above, Complainant and S1 both engaged in an unprofessional manner while at
work. However, there is simply no evidence that their antagonism had roots in unlawful
animus, and in fact they were of the same race, color, not that far apart in age, and most of the
allegedly harassing conduct occurred prior to Complainant’s EEO activity. Rather, their
interpersonal conflicts appear to have resulted from a failed friendship. Accordingly, because
Complainant has not established that management’s conduct was taken because of a protected
basis, his claim of harassment fails.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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.

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
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and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

February 7, 2013
Date