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

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2022001328 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Crista H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2022001328 Hearing No. 560-2020-00146X Agency No. 66-000-0005-19 DECISION 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 December 9, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as an Inspection Service Operations Technician (ISOT), GS-11, at the Agency’s St. Louis Field Office, Chicago Division in Chicago, Illinois. 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. 2022001328 2 On March 11, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her to harassment based on race (Black), age (YOB: 1963), and in reprisal for prior protected EEO activity2 when: 1. on unspecified dates, Complainant was harassed, followed around the building, and threatened by a co-worker (CW1), and management failed to take appropriate action after she notified them of her co-worker’s actions; 2. on unspecified dates, Complainant’s workload increased, and management failed to provide her with assistance; 3. on unspecified dates, after CW1’s retirement, CW1 continued to be allowed into Complainant’s work area where she would walk by Complainant’s office and threatened Complainant; 4. on an unspecified date, Complainant was not selected for a position for which she was qualified and for which she was encouraged to apply; 5. on unspecified dates, Complainant was not provided with training sufficient for her to perform the duties of her position; 6. on November 19, 2018, Complainant became aware that an Inspector was updating the office directory when that was a function that should have been assigned to her; and 7. on or about April 25, 2019, Complainant was issued a Letter of Warning based on a fabricated incident. After an investigation, the Agency provided Complainant a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On November 17, 2021, the AJ issued a decision by summary judgment in favor of the Agency, granting the Agency’s September 10, 2021 motion. Based on the evidence developed during the EEO investigation and by incorporating the Agency’s motion, the AJ concluded that Complainant failed to demonstrate that the Agency had subjected her to harassment based on her sex, age, or reprisal for prior protected EEO activity or disparate treatment. The AJ also asserted Complainant’s claims were not sufficiently severe or pervasive enough to constitute a hostile work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), where the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 2 The record indicates that Complainant had not filed a prior EEO complaint. However, Complainant testified that she engaged in prior protected EEO activity when she filed a complaint against her co-worker in January 2017. 2022001328 3 (1986), that harassment is actionable only if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment violate Title VII. Here, the AJ noted that Complainant alleged that she was alienated, and staff failed to speak to her or acknowledge her presence. However, the AJ determined that, even if true, in this case these were matters of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). Regarding Complainant’s harassment allegations against CW1, the AJ concluded that, even if true, management took prompt and immediate action to address Complainant’s harassment allegations involving CW1 and, as a result, there was no basis for imputing liability to the employer. Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. In the case of co-worker harassment, as here, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Here, management investigated Complainant’s January 2017 allegation against CW1 and conducted an initial inquiry from February 2017 through August 2017 and issued CW1 a Letter of Warning for unprofessional conduct on September 27, 2017. The AJ further noted that management removed CW1 from the premises and put her in a non-pay status on November 8, 2017, after CW1 and Complainant had an argument that same day. The Agency acknowledged that CW1 was subsequently permitted to return to the office to remove her personal belongings. However, management removed CW1 from the premises when Complainant reported that CW1 had walked by her office. Management also changed Complainant’s work extension number after Complainant indicated that CW1 had called her. Consequently, the AJ concluded the record supported that management took prompt, immediate action to address Complainant’s harassment allegations against CW1. The AJ further determined that Complainant had not presented sufficient credible evidence demonstrating that considerations of her race, age, or retaliatory animus motivated management’s actions toward Complainant. Here, Complainant’s Supervisor (African American, female, 52) denied that Complainant was given an increased workload. Rather, the Supervisor testified that Complainant was assigned the same amount of work and duties as the other ISOTs. Additionally, contrary to Complainant’s assertions, she stated Complainant was provided training on Purchasing, Gas Receipts, and Timekeeping, and in some instances, Complainant was offered training classes, but did not take them. The record failed to indicate that Complainant reported to management that she perceived the Inspector performing her duties as discriminatory or a form of harassment. The AJ further determined that management articulated legitimate, non-discriminatory reasons for the Letter of Warning and for Complainant’s non-selection for the General Analyst position. Regarding the Letter of Warning, management witnesses indicated that Complainant was issued this disciplinary action for conduct unbecoming of an Inspection Service employee. Specifically, Complainant acknowledged that she hung up the phone while her Supervisor was talking to her. 2022001328 4 Regarding the non-selection, the Agency indicated that 28 applicants applied, but Complainant was only determined to be minimally qualified, and consequently, did not receive an interview for the position. On December 9, 2021, the Agency issued a final decision adopting the AJ’s finding of no discrimination. The instant appeal followed. Complainant did not submit any statements on appeal. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Here, we find no error on the part of the AJ in concluding that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Accordingly, we AFFIRM the Agency’s final order adoption the AJ’s decision. 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. 2022001328 5 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. 2022001328 6 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 October 17, 2022 Date