2025003192•EEOC Appeal 2025003192
Gesamter Gesetzestext
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Noah W.,1 Complainant, v. David Steiner, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2025003192 Hearing No. 520202200441X Agency No. 4B120010222 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 9, 2025, 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 Agency’s final order. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Sales Services Distribution Associate, PS-06, for the Poughquag 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.
2025003192 2 Post Office in Poughquag, New York. Complainant’s first level supervisor was the Poughquag Postmaster, EAS-18 (Postmaster), and his second level supervisor was the Manager, Post Office Operations, EAS-23 (Manager). On May 9, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment, including sexual harassment, on the bases of race (White), sex (male), age (60), and reprisal (protected EEO activity related to the instant complaint) when: 1. Beginning in March 2022 and ongoing, Postmaster (male, age 45, race not specified) made lewd, sexist comments about customers; when Complainant told him it is inappropriate, Postmaster called Complainant names and told Complainant he can do whatever the f—k he wants; 2. During the first few weeks of March 2022, Postmaster would remove his pants and shirt and exercise in front of his computer, when Complainant informed him that Complainant felt sexually harassed by Postmaster being in his underwear, Postmaster belittled Complainant; 3. On March 7, 2022, and ongoing, Postmaster picked on Complainant about his uniform; 4. On April 9, 2022, Management took away Complainant’s before-tour overtime, and expected Complainant to clean the office during his duties at the window;2 5. On May 8, 2022, a notice was posted stating all personal items at the post office needed to be removed; and 6. On May 11, and May 16, 2022, Postmaster videotaped Complainant and took photos of him. 2 Complainant also filed a grievance on the issue of whether cleaning must be done during the employee’s scheduled shift or during overtime. The grievance was placed in abeyance, pending the outcome of National Case No. Q10C4QC.
2025003192 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The parties were provided with an opportunity to further develop the record through discovery. The AJ initially assigned to the case issued a Discovery Order directing the Agency to “produce any existing report by [OIG Inspector] and contemporaneous notes produced as a part of the investigation into Complainant’s allegations against [Postmaster].” The Discovery Order also permitted Complainant to submit a notarized statement from his former supervisor. The Discovery Order noted that neither party requested to depose any witnesses. The parties complied with the Discovery Order, then the Agency filed a Motion for Summary Judgment, and Complainant filed a Response. On May 13, 2025, the case was reassigned to another AJ. This AJ directed the Agency to issue a Reply Brief to Complainant’s Response. The AJ then issued a decision without a hearing (summary judgment) in favor of the Agency. The Agency issued a final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. Complainant filed the instant appeal. Complainant noted that the complaint file did not include the supplemental evidence filed in response to the Discovery Order, so he uploaded the OIG investigative file and the notarized letter from his former supervisor for the Commission’s review. As these documents were already part of the hearing record, we have considered them when rendering the instant decision.3 Summary Judgment The Commission's regulations allow an AJ to grant summary judgment when they find that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 3 Complainant submitted a number of additional documents on appeal, most were already contained in the ROI. Generally, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3, Alphonse L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020004230 (Dec. 13, 2021), see also, e.g., Su v. Dep’t of the Army, EEOC Appeal No. 01A54895 (Jan. 5, 2006) (declining to review affidavit from the complainant’s coworker, which the complainant provided on appeal). Therefore, we have not considered any evidence that was not already in the ROI or hearing record.
2025003192 4 An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322- 23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. The record reflects that Postmaster began working at Poughquag on March 7, 2022, during an Agency-wide effort to standardize its facilities. Manager instructed Postmaster to create a plan of action to standardize the Poughquag Post Office. Aside from Complainant and Postmaster, the only other Poughquag employee was a part-time Sales Services Distribution Associate, PS-06, (Coworker). As a smaller post office, Poughquag was subject to the Agency’s Small Office Variance (SOV), an operational model used to evaluate efficiency. Additionally, on April 4, 2022, Poughquag underwent an on-site National Retail GEMBA Audit (GEMBA review) to assess whether it met the Agency’s standardization requirements. Applying SOV metrics, Postmaster determined that Poughquag was expending too many overtime hours and risked exceeding its allotted amount. He saw that Complainant was using one hour of overtime each day to clean prior to his tour. Postmaster posted the following notice: “Effective April 9, 2022. There will be no more overtime for cleaning. This will be done during normal business hours.” Postmaster required Complainant to log off Retail Systems Software, RSS, and log in under the custodial function for 3 hours per day. Meanwhile, Postmaster performed Complainant’s clerk duties at the window.
2025003192 5 Postmaster was permitted to perform bargaining unit work (BUW) under the collective bargaining agreement (CBA) between the Union and the Agency. Emails reflect that prior to implementing his plan, Postmaster notified Manager, who did not object. On April 23, 2022, Postmaster placed the following notice by the time clock: “Attention all employees: Effective May 8, 2022, due to the Retail and Operations Field Support GEMBA on April 4, 2022, any personal items that are in the Poughquag Post Office will be removed…Any personal items in the back office not in an assigned locker shall be removed as well.” The GEMBA review identified and photographed numerous deficiencies in standardization, including, but not limited to, a basketball hoop in the parking lot, “non postal items at the [clerk] window,” such as photographs and cards, trash bags, and boxes of items, such as holiday décor, in the back of the office and outside the building. These non-postal items were all attributed to Complainant, as well as items in the lobby and in the storage shed in the parking lot. The record contains an April 13, 2022, email where Postmaster sought guidance from upper management, regarding the GEMBA review. In the ROI, Manager testified that he and Postmaster discussed the matter and agreed that Complainant needed to remove his personal belongings from the premises. Meanwhile, on April 18, 2022, Postmaster emailed Manager and several other Agency officials voicing concern about Complainant’s conduct, and that four of the Poughquag security cameras were inoperable. Postmaster states that Complainant boasted about taking legal action against prior management officials who “crossed him,” and that he “sees and hears everything.” The record reflects that Complainant had an excellent reputation with customers but had a history of conflict with Management and Coworker. On April 21, 2022, Postmaster contacted the Postal Inspector from the New York Inspection Service. The Postal Inspector, as well as another Inspector and a Special Agent met with Postmaster the next day. Postmaster felt physically threatened and was concerned that four security cameras did not work. Postal Inspector advised Postmaster to call the police if he felt threatened, and that he could record Complainant if he believed he was being threatened. Complainant alleges that Postmaster videotaped or photographed him on May 11, 12, 16, 18, 23, and 31, 2022, and June 1, 2022. On May 5, 2022, Union Representative notified Manager that Postmaster was creating a hostile work environment for Complainant.
2025003192 6 Manager also stated that Coworker reported that Complainant was causing a hostile work environment. Manager initiated an Initial Management Inquiry Process (IMIP), which was conducted by two postmasters from different Agency facilities, from May 6 through 10, 2022. The IMIP contains interviews with Complainant, Postmaster, Coworker, and a former postmaster. The IMIP reflects that both Complainant and Postmaster contributed to the hostile work environment. The OIG Report of Investigation (OIG Report) the Agency provided during discovery, also reflects that Complainant and Postmaster both contributed to the hostile work environment. However, the OIG Report also confirms that Postmaster acted inappropriately by, among other things, displaying an offensive magnet at his workspace, hitting on customers, and staring at customers and Coworker. In or around June 2022, Postmaster was reassigned to a different facility. Hostile Work Environment To establish a prima facie case of harassment, Complainant must prove, by a preponderance of the evidence (i.e. more likely than not), the existence of five elements: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome conduct related to his protected class; (3) that the harassment complained of was based on his protected class; (4) that the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See Celine B. v. Dep’t of Navy, EEOC Appeal No. 2019001961 (Sept. 21, 2020); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). See also Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982), approved in Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67 (1986); Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). As an initial matter, Complainant did not set forth sufficient evidence that Claim 1 (inappropriate comments) and Claim 2 (exercised in underwear), occurred as alleged. Postmaster denies the allegations, and there are no witness statements. Complainant had an opportunity to engage in discovery; therefore, his bare assertions are insufficient to overcome summary judgment.
2025003192 7 See Corrina M. v. Soc. Sec. Admin., EEOC Appeal No. 2020004709 (Apr. 22, 2021) (the complainant’s sworn testimony that her supervisor made comments and taunts indicative of discriminatory animus, was insufficient to overcome summary judgment because the complainant, despite an opportunity to engage in discovery, did not offer any supporting evidence that the taunts and comments occurred as alleged.); Weinstock v. Columbia Univ., 224 F.3d 33 (2nd Cir. 2000) (“At summary judgment stage . . . unsupported allegations do not create a material issue of fact”). Complainant references the OIG Report and the IMIP documents as supporting evidence. These documents establish that Postmaster acted in a manner that made female customers uncomfortable, and that Postmaster and Complainant had a contentious working relationship, they do not support the factuality of Claims 1 and 2. Applying the prima facie analysis, Complainant has not established that the harassment was based on any of his protected classes with respect to Claim 3 (picked on about uniform), Claim 4 (elimination of pre-tour overtime, required to perform custodial duties) and Claim 5 (directive to remove personal items) because the Agency presented a legitimate, nondiscriminatory reason for these actions. Namely, Postmaster was working to comply with and implement Agency-wide standards. Supporting evidence includes contemporaneous emails between Postmaster and Management, and a copy of the GEMBA audit results. Complainant does not provide any evidence of a dispute of a material fact regarding the Agency’s legitimate nondiscriminatory reason. Alternatively, we find that Postmaster’s actions in Claims 3, 4, and 5 do not constitute harassment because they were taken within the exercise of his managerial authority to ensure efficient and orderly operations. Sandy S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022000765 (Feb. 14, 2023) citing Erika H. v. Dep’t of Transport., EEOC Appeal No. 0120151781 (Jun. 16, 2017). We emphasize that while an employee may prefer certain assignments over others, or have a different idea about how operations should be run, “these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day to day operations of an Agency for that of the managers involved.” Dewitt L. v. Dep’t of the Navy, EEOC Appeal No. 0120160682 (May 3, 2016). Likewise, Complainant has not established a prima facie case of harassment for Claim 6, as he offers no evidence of discriminatory or retaliatory motive.
2025003192 8 Postmaster explains that he took photos and videos because he felt physically threatened by Complainant, and feared Complainant would harm his reputation by “telling stories.” The record reflects that Postmaster believed, based on his discussion with an OIG Investigator, that he was permitted to photograph or video Complainant when he felt threatened by Complainant. The Agency supports Postmaster’s explanation with evidence, including statements from Postmaster, the OIG Inspector, prior postmasters, and Manager, along with the IMIP documents and the OIG Report. Complainant set forth no evidence to indicate a question of material fact to indicate that Postmaster was motivated by discriminatory or retaliatory animus. Considering the totality of the record, the image that emerges is one of conflicts and tensions regarding Postmaster’s managerial decision-making that left Complainant feeling aggrieved. See Cathy V. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021001646 (Aug. 31, 2022) (“[T]he statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude.”) Discrimination statutes prohibit only harassing behavior that is directed at an employee because of their protected bases. Id. Complainant has not established a question of material fact to indicate that the Agency acted with discriminatory motivation. Accordingly, the Agency’s final decision is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1125) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Sector (OFS) within thirty (30) calendar days of receipt of this decision.
2025003192 9 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Sector, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFS receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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(f). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0124) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision.
2025003192 10 In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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 their 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. 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: T. Gimbrere _________ Acting Director's signature T. Gimbrere, Acting Director Office of Federal Sector September 22, 2026 Date
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