[Redacted], Alba H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2020005161 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alba H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020005161 Agency No. 4F-926-0120-19 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 28, 2020, finding no discrimination concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Newport Beach Post Office in Newport Beach, California. On October 1, 2019, Complainant filed an EEO complaint alleging discriminatory harassment based on race (Hispanic) and sex (female) when beginning on May 22, 2019, and continuing, she has been subjected to sexual advances and harassment from a coworker and she does not believe management has taken effective action to stop the harassment. 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. 2020005161 2 After completion of the investigation of the complaint, Complainant did not request a hearing before an EEOC Administrative Judge (AJ). The record reflects that the investigator requested Complainant provide an affidavit. She failed to do so. The Agency issued its final Agency decision concluding that Complainant was not subjected to discrimination as alleged. The Agency indicated that on May 22, 2019, at 6:00 pm, Complainant reported to her supervisor that her coworker groped/touched her butt while she was standing by the throwbacks. She told the coworker not to do that. The next day, the supervisor reported the incident to the Postmaster. As soon as he was informed of the incident, the Postmaster immediately interviewed the coworker on May 23, 2019. The coworker admitted the incident stating that he “went by touched her on the butt and said have a good night;” when “[Complainant] works on the dock she gives me hugs;” and “I thought we were just playing cause we played before.” The coworker then promised that he would stay away from Complainant. The record reflects that on May 24, 2019, the Postmaster issued the coworker a Letter of Warning for his May 22, 2019 conduct. Thereafter, Complainant reported to the Postmaster that the coworker was seen walking around showing other employees the Letter of Warning. The Postmaster immediately interviewed the coworker who denied showing the Letter of Warning to people on the workroom floor but admitted showing it on the road to his fellow coworkers. As a result, on June 19, 2019, believing the coworker did not take the Letter of Warning seriously, the Postmaster issued him a 14-Day Suspension for the foregoing conduct. Complainant also indicated that recently in August 2019, the coworker walked by her and stared at her. The Postmaster interviewed the coworker who denied the incident. There was no witness to the incident. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or 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 her or 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) 2020005161 3 there is a basis for imputing liability. 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). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In the case of coworker harassment, as here, an agency is responsible for acts of sexual harassment in the workplace where the agency knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1614.11(d); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). Upon review, we find that the Postmaster took immediate and appropriate corrective action regarding Complainant’s sexual harassment incident. Further, a couple weeks later, when Complainant reported that the coworker created a hostile work environment showing the subject Letter of Warning to his fellow coworkers, the Postmaster immediately interviewed the coworker and issued him a 14-day suspension. There is no evidence Complainant was subjected to any inappropriate conduct from the coworker thereafter. Based on the foregoing, we find that Complainant has failed to show that the Agency subjected her to discrimination as alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) 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 Operations (OFO) within thirty (30) calendar days of receipt of this decision. 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). 2020005161 4 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, 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 OFO 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 his or her 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(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 court has the sole discretion to grant or deny these types of requests. 2020005161 5 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 19, 2021 Date