Joannav.v. U.S. Postal Serv.

Equal Employment Opportunity Commission

Aug 15, 2018

EEOC Appeal No. 0120162570 (E.E.O.C. Aug. 15, 2018)

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

Joanna V.,1
Complainant,

v.

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

Appeal No. 0120162570

Hearing No. 550-2012-00359X

Agency No. 4F-940-0023-12

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the July 8, 2016 final agency decision (FAD) concerning her 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791
et seq. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier, CC-
01, at the Agency’s Main Post Office in Sunnyvale, California. Complainant alleged that she
had been subjected to sexual harassment by a co-worker (CW-1) since sometime in 2010.
Among the incidents, Complainant alleged that CW-1 visited her on her route and tried to help
her; washed her Postal vehicle; followed her home and to work while disguised in a hood; sent
her inappropriate text messages; moved to her neighborhood; gave gifts to her daughter; left

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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messages in her hamper about her birthday; left messages indicating that he knew both license
plates of her cars; and left messages at her case. Complainant claimed that she reported the
conduct to the police and had the Union Steward tell CW-1 to stay away from her and to move
out of the complex within 10 days.

On December 20, 2011, Complainant reported that she was being subjected to sexual harassment
to the Postmaster. Among other things, Complainant told the Postmaster that CW-1 had sent her
text messages stating such things as “You are the reason I can’t sleep at night” and Bible quotes.
Complainant further reported that CW-1 came onto her route and washed her Postal vehicle
twice. Complainant stated that she reported CW-1’s conduct to the police. The Postmaster
initiated an investigation into the allegations, instructed CW-1 to stay away from Complainant
both at and off work, and that any further issues would result in disciplinary action.

On December 28, 2011, Complainant claimed that she found a red envelope with $30.00 in it
with “friends forever” on the envelope. On another occasion, Complainant alleged that she saw
CW-1 staring at her with his hand on his hip while she loaded her vehicle. On the night of
January 6, 2012, Complainant claimed that she saw a man pass by her garage door with his face
covered. Complainant alleged that as soon as she closed the garage, she heard someone bang on
her garage door and yell “you fucking bitch” which prompted her to call the police.
Complainant believed that CW-1 was the man with his face covered and who banged on her
garage. Complainant claimed that CW-1 stalked her near her home on January 20, 2012.
Complainant alleged that she called the police, but was told that there was nothing they could do
unless she had a restraining order. Complainant reported the incident to management on January
30, 2012.

On February 1, 2012, Complainant reported to her supervisor (S1) that CW-1 was stalking her
and submitted medical documentation indicating that she was temporarily totally disabled due to
a mental condition as a result of CW-1’s alleged sexual harassment. After receiving the report of
CW-1’s alleged conduct, the Postmaster placed CW-1 on Emergency Placement in an Off-Duty
Status/Without Pay. On February 3, 2012, CW-1’s alleged conduct was reported to the U.S.
Postal Inspection Service (USPIS). During an investigation, USPIS interviewed witnesses and
reviewed police reports. Complainant did not participate in the investigation. On February 27,
2012, USPIS submitted its Investigative Memorandum and Exhibits to the Postmaster for his
consideration as to whether disciplinary action was warranted.

Following receipt of the investigation, the Postmaster concluded that there were discrepancies in
Complainant’s allegations. For example, the Postmaster determined that despite Complainant’s
claim that she called the police on January 20, 2012, there was no evidence that a call to the San
Francisco Police Department was recorded. In addition, evidence indicated that CW-1 was in
Sacramento at the time Complainant alleged that he stalked her. Further, CW-1 admitted during
the investigation that he made unauthorized deviations from his route to assist Complainant and
washed her Postal vehicle, but stated that he did so for two other carriers as well. Further, the
Postmaster found other inconsistencies between what Complainant told management officials
about certain incidents and what she told police. The Postmaster concluded that there was
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insufficient evidence that CW-1 had any contact with Complainant after being placed on notice
to stay away from her on December 20, 2011, and he was returned to work on February 29,
2012. Nonetheless, on March 29, 2012, the Postmaster issued CW-1 a 14-Day No Time-Off
Suspension for unacceptable conduct for deviating from his route to assist other carriers and
washing their Postal vehicles without approval from his supervisor.

On April 12, 2012, Complainant filed a formal complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of race (Hispanic),
national origin (Mexico), sex (female), and disability when, beginning February 6, 2011 and
continuing, Complainant was sexually harassed by a co-worker (CW-1) and management failed
to take action to remove her from harm.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing; however, the AJ assigned to the matter
dismissed the hearing request after Complainant failed to appear for the scheduled hearing. The
AJ remanded the complaint to the Agency, and the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b).

In the FAD, the Agency determined that Complainant failed to show that she had been subjected
to sexual harassment. The Agency found that Complainant reported in December 2011, that
CW-1 subjected her to numerous instances of sexual harassment dating back to 2010.
Management conducted two separate investigations upon receiving Complainant’s report of
harassment. The Agency determined that only two of Complainant’s allegations were
substantiated: CW-1 acknowledged that he deviated from his route to provide Complainant
assistance and CW-1 acknowledged washing Complainant’s and other carriers’ Postal vehicles.
The Agency concluded that the evidence demonstrated that these were isolated and insufficiently
severe or pervasive to establish a hostile work environment. Further, the Agency found that
Complainant failed to show that the incidents alleged were based on her protected classes. As a
result, the Agency found that Complainant had not been subjected to sexual harassment or a
discriminatory hostile work environment as alleged.

The Agency determined that even assuming that the conduct at issue rose to the level of sexual
harassment or a discriminatory hostile work environment, there was no basis to impute liability.
The Agency found that the record revealed that as soon as Complainant reported her allegations
to management, investigations were initiated by the Postmaster and USPIS and CW-1 was
instructed to stay away from Complainant. Following the investigation, CW-1 was disciplined
for his conduct. As a result, the Agency concluded that management took prompt and
appropriate corrective action. Accordingly, the Agency found that Complainant’s hostile work
environment claim failed. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency failed to analyze the pattern aspect and
totality of the circumstances of her hostile work environment claim. Complainant argues that the
Agency’s actions demonstrated a lack of concern for health and safety. Complainant contends
that the AJ erred in dismissing her hearing request because she was not medically able to proceed
with the hearing. Complainant claims that she submitted medical documentation showing that
she was experiencing complications from a condition that was causing her to have difficulty
breathing and concentrating. Further, Complainant challenges the AJ’s assertion that she was
attempting to avoid the hearing. Accordingly, Complainant requests that the Commission
reverse the FAD and remand the matter back for a hearing.

ANALYSIS AND FINDINGS

The AJ’s Dismissal of Complainant’s Hearing Request

As an initial matter, the Commission will first address Complainant’s contentions on appeal
regarding the AJ’s dismissal of her hearing request as a sanction for failure to appear for the
hearing. The Commission notes that Commission regulations and precedent provide AJs with
broad discretion in matters relating to the conduct of a hearing, including the authority to
sanction a party for failure, without good cause shown, to fully comply with an order. See 29
C.F.R. § 1614.109(e); Equal Employment Opportunity Commission Management Directive 110
for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). However, such sanctions must
be tailored in each case to appropriately address the underlying conduct of the party being
sanctioned. A sanction may be used to both deter the non-complying party from similar conduct
in the future, as well as to equitably remedy the opposing party.

Here, the record shows that on May 18, 2016, Complainant’s representative informed the AJ that
Complainant had become ill and would not be able to appear for the hearing the next day.
Complainant’s representative motioned for the hearing to be postponed. In support,
Complainant’s representative submitted a note stating that “[Complainant] was seen and
evaluated today. Please excuse her from the hearing on Thursday 5/19/16 and Friday
5/20/16…[Complainant] may return to work on 5/23/16.” The AJ denied the motion to postpone
and warned Complainant’s representative that if Complainant was not fully prepared or failed to
appear at the hearing the next day, it would constitute sanctionable conduct resulting in the
complaint being remanded to the Agency for a FAD. Complainant did not appear at the hearing
on May 20, 2016, and the AJ sanctioned Complainant by remanding the complaint to the Agency
for a FAD. The AJ noted in her order that Complainant’s submitted medical note did not cite
any specific medical condition and indicated without explanation that she would be recovered
from her unspecified illness as soon as the scheduled hearing was scheduled to end. The AJ
further noted that Complainant and her representative had attempted on several other occasions
to either delay or change the hearing venue based on highly dubious and shifting reasons. The
AJ listed the numerous requests by Complainant and her representative and found them to be
pretextual attempts to “game” the hearing process. The AJ added that Complainant’s
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representative had a history of engaging in similar conduct which was extremely detrimental to
complainants and the EEO process. Therefore, the AJ not only sanctioned Complainant by
remanding the complaint to the Agency for a FAD, but recommended that Complainant’s
representative be permanently disqualified from any future representation before the
Commission’s San Francisco District Office.

The Commission finds that Complainant’s arguments on appeal are insufficient to find that the
AJ abused her discretion in remanding the matter to the Agency for a decision on the merits of
the complaint. The record is clear that Complainant was notified through her attorney of the
date, time, and location of the hearing and the possibilities of sanctions for failure to appear for
the hearing. Complainant’s submitted medical documentation is insufficient to show that
Complainant was so incapacitated that she could not have appeared for scheduled hearing. Thus,
the Commission finds that the AJ did not abuse her discretion by dismissing Complainant's
hearing request given Complainant’s failure to appear for the hearing.

Hostile Work Environment – Sexual and Sex-Based Harassment

To establish a claim of sexual harassment, Complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct related to her sex,
including sexual advances, requests for favors, or other verbal or physical conduct of a sexual
nature; (3) the harassment complained of was based on sex; (4) the harassment had the purpose
or effect of unreasonably interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for imputing liability to the
employer, in other words, did the agency know or have reason to know of the sexual harassment
and fail to take prompt, remedial action. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The
harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in
the complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (Mar. 8, 1994).

Here, several of Complainant’s allegations are corroborated by the record. The record contains
text messages CW-1 sent Complainant from October through November 2011. ROI, at 49-59,
320-24. While some of the messages appear to be friendly in nature, at least one of the messages
was an invitation to go to dinner and others for coffee. Complainant stated that she declined
CW-1’s offers. Further, CW-1 stated that he stopped sending Complainant text messages around
November 24, 2011, because she stopped responding and he thought that he had angered her.
ROI, at 377. Additionally, the record reveals that CW-1 began showing up on Complainant’s
route to provide her unsolicited assistance and washed her Postal vehicle. Complainant reported
to the Postmaster that CW-1 was harassing her on December 20, 2011. Id. at 362. The
Postmaster initiated an investigation into the matter and instructed CW-1 to stay away from
Complainant. Id. at 364. Additionally, the Postmaster notified USPIS. Id.

Several other incidents were not corroborated or were later contradicted. On one occasion,
Complainant reported that CW-1 parked his Postal vehicle next to hers; however, it was later
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determined that they both had parked outside their assigned spaces. ROI, at 342. On January 6,
2012, Complainant claimed that she saw someone wearing a hooded sweatshirt near her home as
she pulled into her driveway and later someone banged on her garage door and yelled “you
fucking bitch;” however, Complainant could not conclusively identify CW-1 as the individual
responsible. Complainant filed a police report regarding the incident. On January 20, 2012,
Complainant alleged that she observed a white Toyota car driven by CW-1 in the court where
she lived; however, it was determined during the investigation that CW-1 was performing work
for his second job with Hertz Rent-a-Car transporting cars to Sacramento at the time. Id. at 411.
Nonetheless, once Complainant reported this stalking allegation, CW-1 was placed on
Emergency Placement in an Off-Duty Status/Without Pay. Id. at 510.

The Commission does not have the benefit of an Administrative Judge’s credibility
determinations after a hearing. Therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. The record is clear that CW-1 sent Complainant unwanted
text messages, met her on her route to provide unsolicited assistance, and washed her Postal
vehicle without permission. Complainant has presented no corroborating evidence that many of
the other incidents occurred as alleged. Nonetheless, even assuming that the conduct occurred as
alleged, the Commission finds that Agency management took prompt and effective action upon
Complainant’s report of sexual harassment. The Postmaster initiated an investigation, instructed
CW-1 to stay away from Complainant, and notified USPIS, who initiated their own investigation
as well. When Complainant alleged that further contact occurred, the Postmaster placed CW-1
on Emergency Placement in an Off-Duty Status. Both investigations concluded that there was
no evidence supporting Complainant’s claim that CW-1 had any contact following the December
20, 2011 instruction to stay away from her. CW-1 was, however, disciplined with a 14-Day
Suspension for deviating from his route, washing Postal vehicles, and making unwelcome visits
to another carrier’s route. As such, the Commission finds that Complainant failed to establish
that the Agency should be held liable for CW-1’s conduct. Complainant's claim that she was
subjected to sexual harassment fails.

Hostile Work Environment – Non-Sexual Harassment

To establish a claim of harassment a 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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).

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Therefore, to prove her harassment claim, 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 her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

Here, Complainant asserted that based on her protected classes of race, national origin, and
disability, she was subjected to a hostile work environment by CW-1 and by management who
failed to take action. Even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency’s
actions were based on discriminatory animus. As discussed above, management officials
initiated two investigations into Complainant’s allegations immediately after she reported them.
In addition, the Postmaster ordered CW-1 to stay away from Complainant at and outside of
work. The investigations ultimately concluded that there was insufficient evidence establishing
that any further conduct occurred after CW-1 was instructed to avoid contact. Nonetheless, CW-
1 was disciplined with a 14-day suspension for deviating from his route and washing
Complainant’s and other carriers’ Postal vehicles without permission. Thus, the Commission
finds that Complainant failed to demonstrate that she was subjected to a hostile work
environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision 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.
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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

August 15, 2018
Date