[Redacted], Brittney B.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jun 9, 2021

Appeal No. 2020000762 (E.E.O.C. Jun. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brittney B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020000762 Hearing No. 440-2019-00020X Agency No. 1J-603-0016-18 DECISION Complainant timely 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 action 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission REVERSES the Agency’s final order. ISSUE PRESENTED The issue presented is whether the AJ properly issued a decision without a hearing, finding that the Agency did not discriminate against, nor subject Complainant to a hostile work environment, in reprisal for prior EEO activity. 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. 2020000762 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Custodian at the Agency’s Processing and Distribution Center in Aurora, Illinois. Report of Investigation (ROI), at 54. The Supervisor of Maintenance Operations served as Complainant’s first-level supervisor (S1) on Fridays and Saturdays, while another Supervisor supervised Complainant on other days. ROI, at 112. Complainant maintained that S1 subjected her to a retaliatory hostile work environment due to the prior EEO complaint she filed on August 22, 2016, wherein she named S1 as the responsible management official. Complainant alleged that in retaliation for her prior EEO complaint, S1 would reprimand her in front of other employees; ask her to falsify reports; told her not to speak with anyone; made employees go look for her; and would time her breaks, among other things. Complainant specifically maintained, for example, that S1 told her to falsify work sheet reports on November 11, 2017. Id. at 82. Complainant explained that the work sheet reports are a part of her normal duties and keep an account of daily work routes and the estimated time it takes to complete each route. Id. Complainant also maintained that on November 11, 2017, S1 directed that he had better not see her talking to anyone while on the workroom floor. Id. at 84. Complainant said she felt intimidated by S1’s statement and averred that she never observed S1 making the same statement to other employees. Id. Complainant further stated that S1 sent employees to find her on September 23, 2017, because her custodian cart had been parked in the same spot for over an hour. Id. at 85-86. Complainant believed that S1 should have instead paged her, which is the normal procedure for contacting employees who are in the women’s locker room. Id. S1 attested that he noticed Complainant’s custodial cart in the same location for several hours, so he asked the Transportation Supervisor and the Union Steward to check the women’s locker room for Complainant. Id. at 116. According to S1, they then found Complainant siting in a chair in the locker room with headphones on saying that she was on break. Complainant additionally averred that S1 would be become very argumentative towards her when she would ask questions about her work assignments. Id. at 89-92. Complainant also maintained that S1 would reprimand her in front of coworkers and alleged that S1 was “petty” and “vindictive” in an unprofessional manner towards her. Id. Complainant additionally stated that S1 was responsible for timing her breaks and asking her why she went on extended breaks. Id. at 93. Complainant maintained that S1 would page her when he was in charge and he never paged anyone else. Id.2 2 Complainant further stated that her government email account was deactivated and not restored. ROI, at 81, 96. 2020000762 3 S1 stated that break times were an issue not just for Complainant but the entire staff, as management noticed that employees were sitting around unsure if they were supposed be on breaks or not. Id. at 122. S1 stated that Custodians are allotted 30 minutes for lunch and two 15- minute breaks, but that Complainant extended her breaks on a consistent basis. Id. S1 averred that Complainant’s breaks are not timed, but she is paged when she is needed. Id. According to the Electronics Technician, S1 instructed him that Complainant was not to be talking to anyone while she was on the work room floor. Id. at 143. The Electronics Technician additionally expressed that S1 would call him into his office to tell him that Complainant was doing a number of things wrong. Id. The Electronics Technician observed that Complainant was treated differently than other employees and that S1 “would nit-pick Complainant on many petty things” and inform him about them. Id. The Electronics Technician maintained that S1 held at last two to three pre-disciplinary meetings with Complainant, which were about things that were usually without merit. Id. The Electronics Technician expressed that he was shocked that S1’s behavior towards Complainant did not stop but became worse after she filed her prior EEO complaint. Id. Another employee, a Custodian, similarly believed that S1 acted in an abrasive unprofessional manner towards Complainant. Id. at 154-155. The Custodian specifically attested that she witnessed S1 raising his voice at Complainant in an unprofessional manner and not answering Complainant’s questions about her job assignments. Id. The Custodian averred that S1’s response to Complainant’s questions would be defensive and angry stating, “Cuz I said so” or “I'm not answering your questions. I gave you what I gave you. That's it!” Id. The Custodian also maintained that she does think the harassment towards Complainant has ceased and that Complainant’s prior EEO complaint made S1 “go after” Complainant even more. Id. The Custodian attested that Complainant is hard working, but that is still not enough for S1 to not pick on her. Id. The Custodian attested, moreover, that S1 would continue to follow Complainant around the building and would page Complainant several times, not allowing her the courtesy of a reasonable amount of time to respond. Id. According to the Custodian, S1’s angry and negative actions toward Complainant occurred repeatedly, stating that every time he reported to work, he would observe S1’s negative attitude and behavior towards Complainant. Id. On November 18, 2017, Complainant contacted an EEO Counselor, and filed a formal EEO complaint on March 2, 2018, alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 the Age Discrimination in Employment Act of 19673 when: 1. On November 11, 2017, S1 told her to falsify work reports; 3 Complainant filed a prior EEO complaint on August 22, 2016, on the bases of reprisal and age under Agency No. 1J-603-0003-17, naming S1 as the responsible management official. Complainant averred that her prior EEO complaint regarded S1 discriminating against her with regard to work assignments, and him constantly following her around the building, among other things. 2020000762 4 2. On November 11, 2017, S1 said he better not see her talking to anyone; 3. On September 23, 2017, S1 sent operation employees to find her; 4. In mid-August 2016, S1 instructed her to perform tasks one way, then instructed her to perform them another way; 5. Beginning on October 29, 2016, S1 reprimanded her in front of coworkers; 6. In October through December 2016, S1 became very argumentative when Complainant asked a question; and 7. On dates to be specified, Complainant's break times were timed, and she was paged if she was not in the breakroom at the exact time. Following the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On June 25, 2019, the Agency filed a motion for summary judgment, and the AJ thereafter issued a decision without a hearing in the Agency’s favor finding no discrimination. The AJ concluded that Complainant failed to create a genuine issue of material fact to show an inference of retaliation discrimination, or severe or pervasive treatment to establish a hostile work. In so finding, the AJ noted that some of Complainant’s claims occurred before S1 was aware of Complainant’s prior EEO complaint. The AJ also found that Complainant presented no evidence that S1’s treatment of her became more pronounced after she filed her prior EEO complaint. The AJ noted that S1 was known as a tough supervisor who was placed on Complainant’s Tour because Custodians weren’t performing their duties. But Complainant presented no evidence that S1 was motivated by retaliatory animus. The AJ ultimately determined that there were no genuine issues of material fact in dispute and entered judgment in the Agency’s favor. The Agency’s final action implemented the AJ’s decision. CONTENTIONS ON APPEAL Complainant did not file a brief on appeal. The Agency requests that we affirm its final action implementing the AJ’s decision finding no discrimination. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s 2020000762 5 determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 Summary Judgment We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross- examination and summary judgment on such evidence is improper." Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (Feb 24, 1995). In the instant case, we note that two of Complainant’s coworkers observed that S1 instructed Complainant not to talk to anyone; would “nit-pick” Complainant about her duties; hold pre- disciplinary interviews with Complainant about things that were without merit; follow her around the building; refuse to answer her questions; speak to her in an abrasive unprofessional manner; verbally reprimand her in front of other employees; and page her multiple times with allowing her time to respond, among other things. 2020000762 6 Both coworkers believed that Complainant was singled out by S1 and treated differently than other employees. They also both believed that S1’s actions towards Complainant worsened after she filed her prior EEO complaint wherein she named S1 as the responsible management official. The record also contains a signed note from a third coworker, who wrote that S1 would continuously chastise and embarrass Complainant in front of employees in an unprofessional manner. ROI, at 12-15. The third coworker also wrote that it seemed as though S1 had a personal issue with Complainant. Id. This evidence was disregarded by the AJ. Assuming the above incidents are true, these are actions that can rise to the level of a hostile work environment based on Complainant's protected EEO activity. The credibility of Complainant, witnesses, and management officials must be assessed through live testimony at a hearing. Moreover, the Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the complainant or others from engaging in protected activity. Id. We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), 7-1 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). In summary, assuming the statements of Complainant and her coworkers about the above incidents are true, these are actions that can rise to the level of a hostile work environment based on, at least, Complainant's protected EEO activity. The credibility of Complainant, witnesses, and management officials must be assessed through live testimony at a hearing. In so finding, we note that Complainant filed her prior EEO complaint on August 22, 2016 under Agency No. 1J-603-0003-17, wherein S1 was named as the responsible management official. According to Complainant and, as corroborated by coworkers, S1 began to chastise, single-out, and embarrass Complainant shortly thereafter. 2020000762 7 CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission REVERSES the Agency's final action and remands the matter to the Agency in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Milwaukee Area Office Hearings Unit within 30 calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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. 2020000762 8 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). 2020000762 9 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 9, 2021 Date