Ardelia I.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 14, 2020

2020000590 (E.E.O.C. Sep. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ardelia I.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000590 Hearing No. 420-2019-00052X Agency No. 4G-350-0090-18 DECISION The Equal Employment Opportunity Commission (EEOC) accepts the September 26, 2019, appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 12, 2019 final order concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Clerk/Lead Sales and Service Associate, PS- 07, at the Agency’s Bluff Park Finance facility in Birmingham, Alabama. On June 26, 2018, Complainant filed a formal complaint. Complainant claimed that the Agency subjected her to discriminatory harassment based on race (African-American), sex (female), age (65), and in reprisal for prior protected activity (EEOC Appeal No. 0120141554). In support of her claim of ongoing harassment, Complainant cited to the following incidents: 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 2020000590 1. since March 2017, and specifically on August 29, 2017, October 27, 2017, and on March 14, 2018, Complainant has been subjected to verbal harassment and having her space blocked; 2. on March 14, 2018, Complainant was placed “off the clock” in a non-duty without pay status after an altercation with a co-worker; and 3. on June 4, 2018, Complainant’s manager asked her to drop her complaint since she was getting ready to retire soon. Complainant claimed that, since March 2017, she was harassed by one of the custodians (Custodian). She stated that the Custodian blocked her work space entrance and called her a “motherfucker”, “old”, and “ugly,” followed by Complainant’s name on August 29 and October 27, 2017. Complainant stated that a city carrier (CC) witnessed the exchange between her and Custodian on August 29, 2017, and that CC told Custodian to stop. Complainant also asserted that, on March 14, 2018, Custodian hit Complainant in the chest. Complainant claimed that she called the police and filed a police report. On March 15, 2018, an investigative interview was conducted in which Complainant testified that the altercation began when she passed between Custodian and a garbage can and Custodian said that Complainant pushed her. Complainant stated that she did not speak to Custodian because she was not “allowed to say anything to her since March 2017.” Complainant testified that, at this point, Custodian began cursing at Complainant and Complainant decided to call the police. As a result of the alleged altercation, Complainant and Custodian were both placed off the clock in a non-duty without pay status. Complainant also stated that since March 2017, she had contacted ten individuals in management, including the Postmaster, about the ongoing issues between her and Custodian, since March 2017. Complainant stated that, on June 4, 2018, the Manager of Customer Service (MCS) (African American male, age 62) asked Complainant to drop her complaint because she would retire soon. Following an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On August 15, 2019, the Agency filed a Motion for Summary Judgment. On September 3, 2019, the AJ issued a decision, by summary judgment, in favor of the Agency. On September 12, 2019, the Agency issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant does not submit any timely statements or briefs in support of her appeal. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 3 2020000590 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Harassment - Claims 1 and 2 To establish a claim of discriminatory environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, Complainant must establish that she 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, her race, sex, age, and in reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Complainant stated that, on several occasions since March 2017, Custodian verbally harassed Complainant, and blocked Complainant’s work space. Complainant specifically referenced the dates of August 29 and October 27, 2017, and March 14, 2018. Custodian denied Complainant’s version of events. CC, who Complainant stated witnessed the August 29, 2017 incident and intervened to stop Custodian’s verbal harassment of Complainant, testified that he did not recall the incident. Custodian acknowledged that she and Complainant did not get along and that, on March 14, 2018, Complainant pushed Custodian when Complainant attempted to squeeze between Custodian and a garbage can. 4 2020000590 Custodian denies hitting Complainant in her chest. There is no evidence in the record to corroborate either account of what occurred on August 29, 2017, October 27, 2017, or March 14, 2018. Management officials testified that an investigation into the March 14, 2018 incident occurred. The testimony of Custodian and Complainant led MCS’s supervisor to believe that Complainant was the aggressor in the March 14, 2018 incident. Custodian was still moved so that she and Complainant would not continue to have any possible run-ins. While Complainant claimed that she wrote to ten management officials about the ongoing harassment from Custodian, the record does not contain any evidence of this assertion. MCS testified that he did put both Complainant and Custodian in an off-duty without pay status on March 14, 2018. MCS also testified that he verbally agreed to rescind the March 14, 2018 status so that Complainant could be paid for that time. Complainant does not provide evidence, and the record does not support, that MCS put her in an off-duty without pay status based on discriminatory animus based on Complainant’s race, sex, age, and/or retaliation. In fact, MCS treated Custodian and Complainant equally by putting the in the same pay status, even though the investigation did not support Complainant’s version of events and may have even led to an adverse conclusion against Complainant. In the end, MCS stated that he rescinded the non-pay status of Complainant. Complainant has not provided any evidence to demonstrate that MCS’s motivation in placing Complainant in an off-duty without pay status was Complainant’s race, age, sex, and/or reprisal for prior protected EEO activity. Alleged Interference with EEO Rights - Claim 3 Complainant also stated that, on June 4, 2018, MCS attempted to deter her from pursuing the instant EEO complaint. MCS, however, testified that he never asked Complainant to drop her EEO complaint. He also averred that he never discussed Complainant’s age or retirement with her. Complainant does not provide any corroboration through documentation or witnesses that MCS or any other management official attempted to dissuade Complainant from pursuing her EEO complaint. The ultimate burden of proof lies with Complainant to prove unlawful retaliation and she has failed to do so. CONCLUSION The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 5 2020000590 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. 6 2020000590 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, Director Office of Federal Operations September 14, 2020 Date