[Redacted], Ellen C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionJul 15, 2021Appeal No. 2020001232 (E.E.O.C. Jul. 15, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellen C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020001232 Hearing No. 520-2019-0015X Agency No. 4B-060-0076-18 DECISION On November 18, 2019, 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 January 3, 2020 final decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, PS-06, at the Agency’s Camp Ave Station in Stamford, Connecticut. On May 17, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (anxiety, high blood pressure), age (59), and reprisal for prior protected EEO activity when, on March 7, 2018, the Postmaster (PM) (48 years old) harassed and threatened Complainant on the workroom floor when he said, "I'm going to use 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. 2020001232 2 every word you say against you" and "I'm going to make sure you are not going to win EEO [sic]." 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that Complainant failed to prosecute her complaint. The AJ remanded the complaint to the Agency, and the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The Agency’s FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that Complainant failed to establish that she was an individual with a disability and failed to establish that age or her medical condition formed the bases of any harassment. With regard to reprisal, the Agency found that Complainant failed to establish that the Agency’s action was sufficiently severe to constitute harassment, and further found that liability could not be imputed to the Agency because Complainant failed to report the incident to management. The instant appeal followed. ANALYSIS AND FINDINGS 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, 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”). As an initial matter, we note that Complainant argues that the AJ wrongfully denied her a hearing and that the reason she failed to timely respond was because she never received correspondence from the AJ. We note that Complainant made these same arguments before the AJ, who rejected them. We further note that Complainant has not shown that the AJ used the wrong address when mailing correspondence to Complainant or her representative. Nor has Complainant shown that the AJ abused her discretion in dismissing Complainant’s hearing request. We are therefore unpersuaded by Complainant’s arguments regarding the dismissal of her hearing request. 2020001232 3 Disability and Age Claims Courts have specifically recognized a cause of action for disability-based harassment. See Fox v. General Motors Corp., 247 F3d 169 (4th Circ. 2001); Flowers v. Southern Reg'l Physicians Serv., 247 F.3d 229 (5th Circ 2001). Complainant alleges that PM harassed and threatened her on the workroom floor when he said, "I'm going to use every word you say against you" and "I'm going to make sure you are not going to win EEO." In considering whether this action constitutes harassment, in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the alleged isolated comments involved or were motivated by Complainant’s disability or age. Nor has she shown that the actions were sufficiently severe to alter the conditions of Complainant’s terms and conditions of employment. Therefore, we affirm the Agency’s conclusion that Complainant did not prove discrimination because of her disability or age. Unlawful Retaliation We note, however, that the alleged action involves and referenced Complainant’s EEO activity. The Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8- 13, 8-14 (May 20, 1998). A review of the record shows that PM denies making the alleged statement. Complainant has submitted a sworn statement from a union official who served as her representative and who averred that she heard PM say, “I am going to get you for everything you do.” 2020001232 4 Significantly, however, we note that the union official’s affidavit does not include PM also saying “"I'm going to make sure you are not going to win EEO" which is the only statement that links PM’s alleged actions with Complainant’s EEO activity. Instead, the union official averred that PM’s statement was made “after [Complainant] told her she was going to file a grievance for [Complainant’s supervisor] doing bargaining unit work,” indicating that PM’s action, if it occurred, was based on Complainant’s involvement in union activity, not protected EEO activity. Nor has Complainant shown that her union activity raised issues of discrimination. Accordingly, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that unlawful retaliation in violation of the anti-discrimination statutes occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD. 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. 2020001232 5 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. 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 July 15, 2021 Date Copy with citationCopy as parenthetical citation