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

Equal Employment Opportunity Commission

Feb 9, 2022

Appeal No. 20021000216 (E.E.O.C. Feb. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deandrea M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 20021000216 Hearing No. 480-2017-00178X Agency No. 1F-901-0085-16 DECISION On September 22, 2020, 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 September 2, 2020 final order 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. BACKGROUND During the period at issue, Complainant worked as a Casual Mail Handler at the Agency’s Processing and Distribution Center (PD&C) in Los Angeles, California. On May 26, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) or in reprisal for EEO-protected activity 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. 2 2021000216 1. On January 27, 2016, Complainant’s prior supervisor, a female Supervisor Distribution Operations (SDO1) supervisor said to Complainant: “Oh I thought you quit. I’m going to fire two people and you are one of them.” 2. On February 12, 2016, the SDO1 refused to give a paycheck to Complainant. 3. On March 4, 2016, the SDO1 submitted Complainant’s time including a two-hour lunch, telling Complainant that she didn’t clock out. 4. On March 9, 2016, the SDO1 touched Complainant in an aggressive manner when she instructed Complainant to sign leave slips for days Complainant missed in January. 5. On March 18, 2016, while Complainant was working on the Florence dock, SDO approached her even though the SDO1 had been instructed not to have any contact with Complainant. 6. On April 8, 2016, a Labor Relations investigator insinuated that Complainant must have had a prior relationship with the SDO1. 7. On April 26, 2016, Complainant was notified that she was not hired for the position of Mail Handler Assistant. 8. On July 16, 2016, Complainant received a “Termination of Appointment” letter which separated her from her appointment as a Casual Mail Handler effective July 8, 2016. 9. On an unspecified date, Complainant notified management that she had been subjected to sexual harassment by supervisor SDO1, yet management did not take any appropriate action. 10. In February and June 2016, Complainant notified multiple members of management that her second supervisor, a male Supervisor Distribution Operations (SDO2) made sexual comments to her but management failed to take any action. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On April 20, 2020, the AJ issued a notice of intent to adjudicate the complaint, at least partially, by summary judgment without a hearing. The AJ had ordered Complainant to respond to notice of intent no later than April 27, 2020. Complainant did not respond to the AJ’s notice or order. As a result, the AJ issued a partial summary judgment decision on claims 1-9, concluding no discrimination was established. 3 2021000216 However, regarding claim 10, the AJ determined that this addressed alleged sexual harassment by an Agency official and merited a hearing. The AJ therefore held a hearing on this claim and heard testimony from five witnesses. The AJ issued a decision finding that Complainant had been subjected to sexual harassment by SDO2. The AJ found that $5,000 was an appropriate non-pecuniary compensatory damages award to remedy Complainant for the harassment. Additionally, the AJ ordered the Agency provide SDO2 four hours of in-person training regarding illegal sexual harassment and to consider disciplinary action against the SDO2. The Agency subsequently issued a final order adopting the AJ’s decision and findings. The instant appeal followed. On appeal, Complainant’s arguments are comprised exclusively of the claim that was the subject of a hearing. Complainant states that the Agency had failed to follow applicable policies for investigating and preventing harassment. Complainant accused Agency officials of giving false testimony at her hearing. Complainant opined that the Agency should have been held more accountable for “heinous” actions by its managers and her supervision. She further states that the Agency was never held accountable for its actions. ANALYSIS AND FINDINGS As a preliminary matter, we note that the majority of the subject claims were determined by the AJ to be appropriate for summary judgment, with a finding of no discrimination. Complainant’s sole focus on appeal is the sexual harassment claim which was the subject of the hearing. We find no impropriety in the AJ’s disposition by summary judgment of the majority of claims and will proceed to address the sexual harassment claim for which a hearing was held, as discussed below. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” See Universal Camera Corp. v. Nat’l Labor Rel. Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. EEOC Management Directive 110 at Ch. 9 § VI.B. (Aug. 5, 2015). Here, the AJ found Complainant’s testimony credible. Complainant testified that, from August 2015 through February 2016, SDO2 had on numerous occasions made inappropriate sexual overtures to Complainant. First, SDO2 asked Complainant to take a sunset ride on his motorcycle. Next, SDO2 offered Complainant an expensive purse. Later, SDO2 asked Complainant to spend hours with him in a hotel room. The SDO2 offered to help Complainant’s career advancement. Each time, Complainant refused. 4 2021000216 Finally, the SDO2 threatened to make Complainant’s work environment more difficult because she had rejected his entreaties.2 The AJ found SDO2’s denials “rang hollow.” Moreover, the AJ held that SDO2 had created an unreasonably hostile environment by continuing to overtly pursue a sexual relationship with Complainant in spite of her refusals. The AJ determined that the Agency could not avoid liability for SDO2’s harassment because the management’s response was underwhelming in light of Complainant’s testimony that she had reported SDO2’s improprieties on numerous occasions. We conclude that the evidence of record fully supports the AJ’s determination that the Agency should be held liable for SDO2’s sexual harassment of Complainant. We again note that the Agency has not contested this conclusion. Regarding compensatory damages, the AJ denied Complainant’s requested $20,000 in her pre- hearing submission. The AJ noted that Complainant had offered insufficient evidence in support of her position on damages. On one hand, Complainant discussed loss of sleep, embarrassment and generalized stress resulting from SDO2 sexually harassing her. On the other hand, Complainant boasted that she was stronger than others who would have suffered greater under similar circumstances. Such damage awards for emotional harm are difficult to determine, and there are no definitive rules governing the amount to be awarded in given cases. We concur with the AJ in that Complainant indeed presented limited evidence of emotional harm that she endured. Nevertheless, we note the overtness of the harassment and its six-month duration, the threats to Complainant’s career unless she complied with SDO2’s overtures, and the subsequent frustration Complainant experienced with management’s mishandling of her complaint in that she did not feel that her the Agency seriously addressed her reporting SDO2’s sexual harassment. Having carefully considered the facts of this case, we conclude that $10,000 in non-pecuniary compensatory damages is a more appropriate award in this case. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final action implementing the AJ’s summary judgment determination with the majority claims. We further AFFIRM the Agency’s final action implementing the AJ’s discrimination finding regarding claim 10. However, we MODIFY the Agency' final action implementing the AJ’s remedy regarding compensatory damages. The matter is REMANDED to the Agency in accordance with the ORDER below. ORDER Within sixty (60) days of the date this decision is issued, to the extent that it has not already done so, the Agency shall take the following remedial actions: 2 Although Complainant was separated from Agency employment in July 2016, the AJ concluded that SDO2 had not carried out his threat. 5 2021000216 1. Pay Complainant $10,000.00 in non-pecuniary compensatory damages. 2. Provide 4 hours of in-person training to SDO2 particularly regarding illegal sexual harassment and management’s responsibility to promptly and effectively investigate and correct illegal sexual harassment once made known. This training is in addition to any training he would normally receive. 3. Consider taking appropriate disciplinary action against SDO2. The Commission does not consider training or a request to refrain from future misconduct to be disciplinary action. The Agency must report its decision to the Compliance Officer, as indicated below. If the Agency decides not to take disciplinary action, it must set forth the reasons for its decision. 4. Post a Notice of this finding of discrimination at the Los Angeles Processing Distribution Center, pursuant to 29 C.F.R. § 1614, stating the finding of discrimination and that it is being posted pursuant to this decision. The Notice must be in a prominent location where employee notices are typically posted, continuously for a period of six months. 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. 6 2021000216 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). 7 2021000216 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 February 9, 2022 Date