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

Equal Employment Opportunity Commission

Sep 7, 2021

Appeal No. 2020000963 (E.E.O.C. Sep. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elbert H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020000963 Agency No. 1F-901-0204-18 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 final decision concerning his 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 VACATES the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the record is adequately developed to allow the Commission to determine if the Agency subjected Complainant to a hostile work environment based on sex (male) when his coworker spread false rumors about him throughout the Agency. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency’s Los Angeles Processing and Distribution Center (LAP&DC) in Los Angeles, California. Report of Investigation (ROI), at 64. According to Complainant, he reported to his first-level supervisor (S1), the Acting Lead Manager, the Lead Manager, and the Plant Manager that his coworker (C1) had been subjecting him to a hostile work environment since March 2017. 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. 2020000963 2 ROI at 8-11. Complainant specifically maintained that he reported to management that C1 had been falsely telling employees throughout the Agency that he was a child molester. Id. Complainant maintained that several employees approached him, saying that C1 had been spreading a rumor to employees that he was a child molester. Id. Complainant asserted that C1 began to slander him after he rebuffed her sexual advances. Id. Complainant averred that management failed to address his allegation of harassment, and therefore C1 was continuously allowed to spread the false rumors about him. Id. Complainant maintained that management did not conduct an investigation into the matter, and C1 was not removed from his work unit in accordance with the Agency’s anti-harassment policy. Id. S1 stated that Complainant presented “a PS-13 of alleged allegations to [her] in the month of October 2018,” which she then forwarded to the Lead Manager. Id. at 116. The Lead Manager attested that both parties were separated to address the issue. Id. at 130. However, the Lead Manager attested that Complainant did not report to her that C1 had been spreading the rumors about him being a child molester. Id. Complainant also averred that he was subjected to an investigative interview on August 7, 2018, for absences he acquired due to his Post Traumatic Stress Disorder. Id. at 8-11. Complainant maintained that management improperly discussed his private personal information and medical information with coworkers, including C1. On November 16, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the basis of sex (male) when: 1. Since March 2017, he has been sexually harassed by a coworker and despite reporting the harassment to management, they have failed to take appropriate steps to investigate and/or end the sexual harassment; 2. On August 7, 2018, he was subjected to an investigative interview; and 3. On unspecified dates, management discussed his private personal and medical information with coworkers, including the individual he had reported had sexually harassed him. Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request on that grounds that Complainant failed to provide an executed affidavit for the record in accordance with his orders. 2020000963 3 Specifically, on September 12, 2019, the AJ issued a Show Cause Order for Complainant to explain why he did not provide an affidavit for ROI and ordered Complainant to provide an executed affidavit by September 16, 2019. After Complainant did not respond to the Agency’s Motion to Dismiss for the failure to provide the affidavit, the AJ issued an order dismissing Complainant’s hearing request. The AJ then remanded the complaint to the Agency, and 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 him to discrimination as alleged. In so finding, the Agency observed that there were no corroborating statements or evidence supporting Complainant’s allegations of harassment by C1. The Agency noted that Complainant and C1 lived together at or near the time of Complainant’s allegations, and Complainant did not identify how C1 propositioned him for sex. The Agency also noted that Complainant did not indicate when or how often C1 allegedly spread the rumor about him molesting children. The Agency further noted that Complainant did not identify the private or medical evidence allegedly discussed with others or the contexts in which those discussions allegedly occurred. The Agency found that Complainant’s minimally described allegations were neither severe nor pervasive enough to establish a hostile work environment. The Agency observed that Complainant failed to provide an affidavit for the record as ordered by the AJ, and therefore there was not enough information regarding Complainant’s claim of a hostile work environment. The Agency nevertheless found that management took whatever action it could to address Complainant’s allegations based on the minimal information available. CONTENTIONS ON APPEAL On appeal, Complainant states that the Agency continued to send documentation to his old address during the EEO process even after he provided the Agency with his new updated address in January 2019. Complainant contends that, as a result, he was not able to respond to documentation in a timely manner during the EEO process. Complainant also attaches documentation dated March 7, 2018, which he purportedly sent to the Acting Lead Manager, the Lead Manager, and the Plant Manager. In the March 7, 2018, documentation Complainant wrote as follows: I am making a formal complaint on mail handler [C1]. [She] has been making false accusations around the plant calling me a child molester. These allegations are totally false and unwarranted. I take total offense to these accusations for I have small children and could not fathom anyone violating them in such a manner. Many co-workers are coming up to me saying [C1] is spreading these rumors. . . . Complainant also attached four notarized written statements from different coworkers, supporting his allegations that C1 had been subjecting him to a hostile work environment by falsely spreading rumors that he was a child molester. One of these coworkers wrote, 2020000963 4 I . . . am writing a witness statement for [Complainant], that a mutual employee, [C1] called me and told me that [Complainant] was a child molester. I know for a fact she was spreading those allegations around the United States Postal Service where we work at LAP&DC. This has caused a hostile work environment because we all work together. I know for a fact that these allegations are false. Another coworker wrote that C1 also told her that Complainant was a child molester, which were damaging rumors spread about Complainant within the workplace. The Agency did not respond to Complainant’s appeal. 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 (EEO MD-110), 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 Inadequate Investigative Record Upon review, the Commission finds that the investigative record in this case is inadequate. Therefore, the Commission cannot make a reasoned determination on the merits of the complaint. EEOC Regulation 29 C.F.R. § 1614.108(b) and EEO MD-110 at Chapter 6, § I require agencies to develop an impartial and complete factual record. An appropriate factual record is one that allows a reasonable factfinder to draw conclusions as to whether discrimination occurred. EEO MD-110 at Chapter 6, § I. An investigator must be thorough. “This means identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome.” Id. at § V.D. “To ensure a balanced record, it is necessary only to exhaust those sources likely to support the complainant and the respondent. An investigation conducted in this manner might reveal that there is ample evidence to support the complainant's claims and no evidence to support the agency's version of the facts, or vice versa. The best type of investigation allows for complainant to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames.” Id. We initially note that the record supports Complainant’s contention on appeal that the Agency sent documentation to his previous address, even after being provided with his new address. 2020000963 5 The record reflects that the EEO investigator sent the request for an affidavit to Complainant’s previous address and continued to send documentation to his previous address during the hearing process before the AJ. For example, the Agency filed a Motion to Dismiss before the AJ on October 4, 2019, but noted in its certificate of service that the filing was sent to Complainant’s previous address. Yet the AJ, in his September 12, 2019, Order to Show Cause, made light of the fact that Complainant had a new address. Moreover, after sending its Motion to Dismiss to Complainant’s previous address, the Agency then sent its final decision to his new address. Given the Agency’s confusion over Complainant’s correct address, we find that, in the interest of fairness, that Complainant should be given another opportunity to submit an affidavit for the record.2 In addition, the Investigator only sought affidavits from management officials and did not seek affidavits from any coworkers or other employees of the Agency. We note that, in Complainant's appeal brief, he attaches four notarized statements from coworkers who corroborated his claims that C1 had been subjecting him to a hostile work environment by falsely telling employees that he was a child molester. In addition, we note that the Lead Manager attested that Complainant did not report to her that C1 had been accusing him of being a child molester. ROI at 130. Yet, as noted above, Complainant attached documentation dated March 7, 2018, to his brief on appeal, which he purportedly sent to the Acting Lead Manager, the Lead Manager, and the Plant Manager. This attached documentation shows that Complainant complained to management that C1 had been subjecting him to a hostile work environment by falsely spreading rumors throughout the Agency that he was a child molester and that he wanted management to take action to stop the harassment. We note, moreover, that S1 stated that Complainant presented “a PS-13 of alleged allegations to [her] in the month of October 2018,” which she then forwarded to the Lead Manager. Id. at 116. However, the record does not contain a copy of this PS-13 form that Complainant submitted, even though the investigator requested it from the Agency. Id. at 247. Also, the Lead Manager only attested that Complainant and C1 were separated to address the issue. Id. at 130. The Lead Manager provides no further detail as to how the parties were separated and what, if any, further actions were taken. We also note that the Plant Manager did not respond to the Investigator’s request for an affidavit and both S1 and the Lead Manager apparently did not respond to the Investigator’s request for a supplemental affidavit. Id. at 97. Further, C1, the alleged harasser, was curiously not asked to provide an affidavit for the record. 2 The AJ sent all orders via email, not by U.S. mail, to Complainant and his Representative. The AJ noted in his September 12, 2019, Order to Show Cause that Complainant’s Representative acknowledged via email that Complainant had not submitted the affidavit. We note, however, that Complainant Representative was not an attorney, and hence the record does not reflect whether Complainant had been receiving the AJ’s orders through email. On appeal, Complainant lists a different email address than the ones listed by the AJ in his orders to Complainant. 2020000963 6 Finally, we note that Complainant alleged that management discussed his "personal family and medical business with" the alleged harasser. The Rehabilitation Act of 1973, 29 U.S.C. § 791, specifically protects the rights of employees to keep their medical records confidential. See 29 C.F.R. §§ 1630.14(c)(1), 1630.14(d)(4)(i). It is not clear what information management allegedly disclosed and whether it constituted confidential medical information. Based on the above, we conclude that the present record lacks the necessary information upon which to adequately determine if the Agency's actions amount to a hostile work environment. Accordingly, we remand this case back to the Agency to conduct a supplemental investigation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND Complainant's complaint in accordance with this decision and the Order below. ORDER The Agency is ORDERED to take the following actions: 1. The Agency shall conduct a supplemental investigation to develop an accurate factual record regarding Complainant's hostile work environment claim, as described above. The Agency shall obtain all relevant evidence to address the hostile work environment claim, including, but not limited to: a. Sworn affidavits from the four coworkers who submitted the notarized statements in support of Complainant’s appeal; b. A sworn affidavit from C1 addressing Complainant’s allegations that she subjected him to a hostile work environment; c. An affidavit from the Plant Manager and supplemental affidavits from S1 and the Lead Manager, explaining if they received Complainant’s March 7, 2018, documentation, which he apparently sent to them, complaining about C1’s harassment. They should also explain in more detail what actions, if any, were done to address Complainant’s allegations; d. The PS-13 documentation which S1 stated that Complainant presented, which she then forwarded to the Lead Manager; e. Another opportunity for Complainant to submit an affidavit for the record. The request shall be sent to Complainant’s updated address; f. A rebuttal statement from Complainant after he has had an opportunity to review the requested sworn affidavits and documents; and 2020000963 7 g. The Agency shall ensure that the investigator obtains any other affidavits or documentation not specifically requested in this Order, and consistent with this opinion, which may be relevant in determining the merits of Complainant's complaint. 2. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within one hundred and twenty (120) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below. 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. 2020000963 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). 2020000963 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 September 7, 2021 Date