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

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2021002528 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashlee P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2021002528 Agency No. 1G-781-0078-20 DECISION On March 8, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a December 21, 2020 final Agency decision (FAD) dismissing 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Mail Processing Clerk (Flat Sorting Operator), pay level 6, at the Corpus Christi Processing & Distribution Center in Corpus Christi, Texas. In early September 2020, Complainant initiated contact with an equal employment opportunity (EEO) counselor alleging Agency management discriminated against her based on her disability when: 1. on August 5, 2020, she was placed on the “deems desirable list”, meaning she was required to submit medical documentation to support sick leave requests even of two days or less despite being covered by the Family Medical Leave Act (FMLA), and she 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. 2021002528 2 was then charged leave without pay (LWOP) rather than sick leave for not submitting medical documentation. Before the EEO counselor completed counseling, Complainant alleged to her that she was sexually harassed based on her sex (female) when: 2. after calling maintenance to the supply room to retrieve label holders at 9:30 PM on November 13, 2020, Coworker 1 (CW1 - male) arrived and when they were both inside she saw a chain door and commented it looked like a prison in there and CW1 got a weird look and said “this is where I would lock you up”, which frightened her. After she clocked out at 12:30 AM CW1 was waiting at the entrance door and held it open for her and asked about her husband’s work schedule. She changed the topic by commenting on the warm weather, and CW1 responded he loves the cold and likes to sleep naked in a sleeping bag in the snow. Complainant wrote that in the about five years she worked with CW1 he never made her uncomfortable before. On November 30, 2020, the EEO counselor mailed Complainant her notice of right to file an EEO complaint, along with a complaint form. The notice instructed that the complaint must be filed by mail with the NEEISO (National EEO Investigative Services Office). Before she received the notice, on November 30, 2020, Complainant mailed a letter to NEEOISO indicating therein she wanted it to be treated as her EEO complaint. The letter complaint only regarded issue 2, and NEEOSIO received it on December 3, 2020. Up through this point Complainant did not indicate she was represented. On December 21, 2020, NEEOISO issued a FAD dismissing the above complaint for failure to state a claim because it did not rise to the level of actionable harassment. In a footnote, the FAD mentioned Complainant did not allege issue 1 in her complaint. The FAD was delivered to Complainant’s mailbox on December 31, 2020. Meanwhile, on or about December 9, 2020, Complainant received the notice of right to file her EEO complaint that was mailed to her on November 30, 2020. By facsimile to the EEO counselor on December 18, 2020, using a complaint form, Complainant alleged issue 1 and designated an attorney as her representative. On February 11, 2021, NEEOISO wrote a letter to Complainant, with a copy to her attorney, that it was in receipt of her attorney’s correspondence dated February 1, 2021 (which is not in the record), and that Complainant did not indicate she was represented by the attorney in her complaint (presumably the November 30, 2020 letter complaint) or in EEO counseling. NEEOISO wrote Complainant that the FAD was delivered to her address on December 31, 2020, and the FAD notified her of the 30-day time limit to file an appeal with the EEOC. 2021002528 3 Via counsel, Complainant filed her appeal with the EEOC on March 8, 2021. Therein, Complainant’s attorney indicated the FAD was received on February 14, 2021. On appeal, Complainant makes no argument. In reply to the EEOC’s letter to the Agency advising Complainant filed an appeal, NEEOISO repeats the language in its February 11, 2021 letter to Complainant. ANALYSIS AND FINDINGS While Complainant incorrectly filed the part of her EEO complaint using the complaint form with the EEO counselor rather than NEEOISO, we deem this filing sufficient. She filed it on December 18, 2020, with the same EEO counselor who processed her case, well within the 15 day time limit after receiving the notice of right to file the complaint. Also, she previously timely filed the letter part of her complaint with NEEOISO. Because Complainant designated her attorney as her representative on the December 18, 2020 complaint form part of her complaint, and the December 21, 2020 FAD which was only mailed to Complainant was received by her attorney on February 14, 2021, we find the appeal was timely filed on March 8, 2021. 29 C.F.R. § 1614.402(b). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court 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, at 21-22. To the extent that the complainant is alleging that the remarks constituted harassment, the Commission notes that unless the conduct is severe, a single incident or group of isolated incidents will not be regarded as a claim of discriminatory harassment. Id., at 21. The alleged harassment all occurred in one evening. Complainant does not allege that CW1 harassed her before or after this occurred. All the alleged harassment was verbal. The alleged harassment was a total of three comments. While we have no reason to doubt that a lock up comment would be scary to Complainant, we find that this group of comments in isolation do not rise to the level of actionable harassment. Issue 1 fails to state a claim. Complainant did not file the December 18, 2020 part of her EEO complaint alleging issue 1 with NEEOISO, as instructed, and filed it just three days before NEEOISO issued the December 21, 2020 FAD on the November 30, 2020 part of her complaint. The November 30, 2020 part did not contain issue 1. NEEOISO did not have a fair opportunity to rule on issue 1. Because of this, we are remanding issue 1 back to the Agency for a determination on whether to accept or dismiss that claim. The FAD is MODIFIED. 2021002528 4 ORDER The Agency is ordered to either issue a letter accepting issue 1, as numbered herein, or a FAD dismissing issue 1 with appeal rights to the EEOC to Complainant and her attorney within 60- days of the date of this decision. If the Agency accepts issue 1, it shall process it in accordance with 29 C.F.R. Part 1614.108 et seq. and as follows: issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2021002528 5 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). 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). 2021002528 6 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 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 June 7, 2021 Date