[Redacted], Alise A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jul 20, 2021

Appeal No. 2019005036 (E.E.O.C. Jul. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alise A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2019005036 Agency No. 1J-607-0109-18 DECISION On June 20, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 20, 2019, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency subjected Complainant to a hostile work environment and discrimination on the bases of her sex and race. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Distribution Operations at the Agency’s Busse Processing and Distribution Center in Elk Grove Village, Illinois. On October 13, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of race (African- American) and sex (sexual orientation)23 when: 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. 2019005036 2 1. on June 12, 15, 16, 19, 20, and 21, 2018, Complainant communicated to the Acting Plant Manager (RMO)4 that a coworker (CW), also a supervisor of distribution operations, was harassing her, and RMO did nothing; 2. on June 14-16, ad 19-22, 2018, CW sat at her workstation, went through her things, and removed items; 3. on July 5, 2018, Complainant was verbally and physically attacked by CW and RMO screamed at Complainant; 4. on July 9, 2018, RMO told Office of the Inspector General (OIG) agents5 that Complainant was not in the building even though he knew she was; and, 5. on August 10, 11, 14-16, 2018, Complainant was charged with Leave Without Pay (LWOP). The investigative record reflects the following pertinent matters relating to the subject claims. Complainant stated that, several times throughout June 2018, she informed RMO (Caucasian, male), the Acting Supervisor (AS1), another Acting Supervisor (AS2), the Acting Manager (AM), the Manager of Distribution Operations (MDO), and the Supervisor of Distribution Operations (SDO) that CW (African-American, female) was harassing her. AM, SDO, and MDO advised Complainant to bring the matter to RMO’s attention. Complainant stated that she also repeatedly discussed CW’s harassing behavior with RMO, AM, MDO, and the Acting Manager of Distribution Operations (AMDO). On June 12, 2018, RMO met with CW concerning Complainant’s allegations of harassment. However, there is little detail about what was said during this meeting. The record contains several emails between CW and Complainant, where both are clearly frustrated with the other. 2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 3 Complainant attested that she was unsure if management were aware of her sexual orientation prior to the complaint. 4 Responsible Management Official (RMO). 5 The record indicated that these were Postal Inspection agents, not OIG agents. 2019005036 3 The record also contains a June 16, 2018 email from Complainant to RMO, with other management officials copied on it, stating that she was unhappy and bothered by CW’s behaviors. There is no discussion in this email about any derogatory statements by CW. In a June 22, 2018 email from Complainant to CW, with RMO copied on it, Complainant indicated her belief that CW was harassing her and stated that she would take necessary steps to stop it. The email is not specific as to why Complainant believed CW was harassing her. At the relevant time, CW was sharing a desk with Complainant as they primarily worked on different tours. Desk sharing was common, and a third supervisor frequently used the same desk as Complainant and CW. RMO noted that the office space and desks were shared among two offices and three tours. Several times throughout June and July 2018, Complainant informed RMO that CW was going through her things and moving items around the shared desk. CW asserted that she never maliciously moved or removed items from Complainant’s desk. Unlike Complainant, whom CW asserted would maliciously remove the keyboard and mouse and leave notes saying, “Good luck on working.” AM stated that Complainant’s desk was often messy, and that CW would move things around the desk when she was using it. SDO stated that it got to a point where both individuals would move things around the desk and leave notes to each other. SDO testified that he was surprised at how “they [were both] acting in such a crazy manner.” The record does not indicate what circumstances led to CW and Complainant sharing a desk, other than being on different tours. Complainant stated that she and CW had prior work history and did not get along. Complainant noted that she once told RMO that CW shared information regarding Complainant’s sexual orientation and spread rumors about her at a different Agency facility 15 years prior. Complainant did not provide evidence to substantiate her assertions. Complainant also informed RMO that CW frequently said derogatory and discriminating statements about and against her at the current facility. Complainant asserted that while management, especially RMO, was all aware of their poor interpersonal relationship, no one ever seemed concerned. SDO stated that “[e]verybody was aware of this rivalry and hostility. [MDO] has worked with us for years and he was made well aware. Both parties let us know they did not get along. This should have been taken seriously. At the same time, as two mature adults, they should have handled the situation better.” On July 5, 2018, an altercation ensued between Complainant and CW. Complainant asserted that CW yelled several discriminatory and derogatory statements at her, including calling Complainant a “Dyke Bitch” and “Yeah, you eat pussy.” CW denied making these statements. Instead, CW stated that Complainant was aggressive and insulting towards her and told CW that she (CW) wanted “to eat her pussy.” CW averred that she laughed at Complainant and told her to “find her pussy.” Complainant asserted that the verbal assaults escalated to CW physically attacking her. Complainant alleged that CW used her hands and an office telephone to attack her and that she sustained self-defense injuries. Both acknowledged that a verbal altercation ensued, but CW denied making derogatory statements and making any physical contact with Complainant. No witnesses were present during the altercation. 2019005036 4 The record contained conflicting reports as to what was allegedly said and whether there was an actual physical altercation.6 Immediately following the incident, Complainant called the police. RMO separated CW and Complainant, and then called the Postal Inspector. Complainant also called her Union Representative7 and, based on his advice, chose not to speak with the Postal Inspector. Instead, Complainant informed RMO that she would speak with the Postal Inspector at another time and was leaving to seek medical care at the hospital. Complainant asserted that RMO yelled at her when she attempted to leave to seek medical attention. RMO denied yelling and asserted that he questioned why Complainant was leaving when he had just informed her that the Postal Inspector was arriving to assess the situation. Complainant declined to be interviewed, so RMO requested that SDO drive Complainant to the hospital. Complainant asserted that there were several witnesses who allegedly heard CW boasting about hitting Complainant. Complainant did not name these witnesses. SDO testified that he was with Complainant following the July 5, 2018 incident. He observed a bruise on Complainant’s arm and that she was distraught. AS2 observed two scratches on her right ear and a bruise on her arm. AS1 provided similar statements. However, ambulatory personnel who had arrived shortly after the incident remarked that Complainant did not have any injuries on her. A Postal Inspection later determined that there was insufficient evidence to prove a physical altercation had occurred. Complainant asserted that RMO showed no sympathy or concern, and she speculated that he did not care because she was just a “black queer woman [being] harassed by another black woman.” On July 9, 2018, Complainant returned to work. However, she suffered a panic attack early in the morning and left to seek medical attention. Complainant asserted that she knew the Postal Inspection team was arriving that day but was unsure when. The Postal Inspector testified that he never arranges a definitive time because people tended to leave before he arrived. It was later discovered, during a September 19, 2018 meeting, that a Postal Inspection team did arrive at the facility on July 9, 2018. The Postal Inspector did not meet with Complainant because he was informed that Complainant was out on sick leave, possibly for the week. RMO testified that he did not believe Complainant had reported to work on July 9, 2018, when he informed the Postal Inspector that she was not in. RMO also testified that he could not recall if he had told the Postal Inspection team that Complainant had or intended to take 40 hours of leave. The record contains an absence analysis which indicated that Complainant was at work on July 9, 2018. However, it appears from July 11 to 15, 2018, Complainant’s time was marked as Continuation of Pay. 6 Following the incident, Complainant applied for workers’ compensation and her claim was accepted on August 30, 2018. The claim noted: abrasion of right ear, contusion of left upper arm, and abrasion on unspecified part of the neck. 7 The Union Representative was not interviewed for this investigation. 2019005036 5 On September 20, 2018, the Postal Inspection issued the Assault and Threat Specialist Report (Report). The Report detailed the July 5, 2018 incident according to the involved parties and contained a statement from RMO. The Report concluded that a verbal altercation occurred. However, due to a lack of named witnesses and conflicting stories from both CW and Complainant, the Inspector could not confirm that a physical altercation occurred. It was noted that there were witnesses in the immediate aftermath, but none during the actual incident. The Postal Inspector noted that he questioned why Complainant chose to leave prior to his arrival on the day of the incident. Complainant responded that she was upset; left based on the advice of her Union Representative; and went to get medical treatment. The Postal Inspector found the Union Representative’s advice to be bad judgment and would have preferred to interview Complainant that day. The Union Representative was not interviewed during the investigation. Complainant asserted that, on August 10, 11, 14-16, 2018, she was charged with Leave Without Pay (LWOP) by RMO. Complainant noted that she had put in a request with AM for sick leave for those dates. Complainant asserted that CW had altered her sick leave request to LWOP on RMO’s instructions. RMO denied changing or instructing anyone to change Complainant’s time and attendance. At the time, a new Acting Senior Manager of Distribution Operations (ASMDO) joined the facility. The ASMDO stated that she made the decision to change Complainant’s leave as Complainant had failed to provide her with documentation for the sick leave request. ASMDO stated that she instructed AM or CW to change the time but could not recall who. At the conclusion of the 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant, through counsel, states that she is no longer pursuing claim 5 as part of her harassment claim. This remains as part of her disparate treatment claim. Complainant asserts that everyone knew that CW harassed her, and that they had a poor working relationship. Complainant asserts that despite this common knowledge, RMO never took any proactive steps to stop the harassment or instruct other management officials to step in. Complainant argues that it was clear that CW harassed her due to her sexual orientation and that RMO failed to take appropriate action because he harbors discriminatory animus towards her as a Black, queer woman. Complainant asserts that the Agency failed to meet its affirmative defense and is therefore liable. The Agency did not file a reply brief. 2019005036 6 STANDARD OF REVIEW 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, at Chapter 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”). ANALYSIS AND FINDINGS Disparate Treatment (Claim 5) Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). With respect to Complainant’s disparate treatment claim, assuming arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 5, the new ASMDO joined the facility in August 2018, and was the one who made the decision. The ASMDO made the decision to change Complainant’s leave as Complainant had failed to provide her with documentation for the sick leave request. There’s no indication that the time and attendance change by ASMDO was done with discriminatory or retaliatory animus. There is also no indication that any other management official was involved in the decision to alter Complainant’s time and attendance. 2019005036 7 Therefore, we find that the Agency provided legitimate, nondiscriminatory reasons for claim 5 and Complainant failed to demonstrate that the Agency’s reasons were pretext for discrimination or retaliation. Hostile Work Environment - Claims 1 - 4 Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). To establish this claim, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome conduct; (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. The Supreme Court in Harris explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Complainant alleged that she was subjected to a hostile work environment based on her sexual orientation and race, particularly regarding the exchange with CW and management’s inaction following the exchange. We find that Complainant has established elements 1 and 2 of a prima facie case of harassment. As to part 3 of her prima facie case of harassment, Complainant argued that the incident with CW occurred because of her protected classes. In support of her allegations, Complainant asserted that CW physically and verbally attacked her on July 5, 2018 and called her derogatory names such as “Dyke bitch.” 2019005036 8 While the record clearly demonstrated that an altercation occurred between Complainant and CW, it does not support Complainant’s contention that the fight was initiated because of her protected bases. We note that Complainant’s own sympathetic witnesses testified to never having heard CW make any derogatory statements about Complainant, either that day or at any time prior. What is clear from the record is a generally contentious relationship between Complainant and CW that has spanned for more than a decade. Complainant alleged that CW clearly harbored animus towards her based on her protected classes and asserted that CW previously revealed her sexual orientation and spread hurtful rumors about her fifteen years prior. However, these allegations were merely speculative as there was no evidence to support them. Based on the record, there is simply insufficient evidence to demonstrate CW engaged in a fight with Complainant based on her protected classes. Lastly, beyond the Report of Investigation and Complainant’s arguments, Complainant did not present further evidence to support her claims. Clearly, if CW made such derogatory comments, this would be of serious concern and could rise to a level of hostile work environment. However, CW denied these allegations and there were no witnesses to support Complainant’s version. What remains are conflicting statements from both Complainant and CW. However, a hearing before an EEOC AJ was not requested. Accordingly, we do not have the benefit of an AJ’s credibility determinations of these various conflicting statements. Complainant had to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. Here, the evidence is, at best, in equipoise. Accordingly, Complainant has failed to meet her burden of persuasion. Complainant v. Dep't of Health and Human Serv., EEOC Appeal No. 0120122134 (Sept. 24, 2014) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012). Accordingly, we find that Complainant failed to show that she was subjected to harassment because of her protected bases and that her claim fails. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order finding no discrimination. 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. 2019005036 9 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). 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. 2019005036 10 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’s signature Carlton M. Hadden, Director Office of Federal Operations July 20, 2021 Date