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

Equal Employment Opportunity Commission

Aug 25, 2022

Appeal No. 2020004853 (E.E.O.C. Aug. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eryn M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020004853 Agency No. 4B-100-0092-19 DECISION On September 1, 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 July 30, 2020, final decision 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. During the relevant time, Complainant worked as a Lead Sales Service Clerk at the Agency’s Washington Bridge Station in New York, New York. On August 14, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), national origin (Not Specified), color (Black), disability (mental and physical), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when Agency officials allegedly performed actions such as texting Complainant on her personal cellular phone; she was instructed to use a different chair; her sweater was moved; and there were instances of 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. 2020004853 2 communication between Complainant and Supervisor that left Complainant feeling bullied, and sabotaged, to include, but not exclusive of: 2. On March 1, 2019, she was questioned on why she instructed employees to end tour on February 28, 2019; 3. On or about March 13, 2019, she was given an Investigative Interview (Pre- Disciplinary Interview / PDI); 4. On March 14, 2019, she was were given instructions not to accept medical documentation from other employees. 7. On April 27, 2019, she was given the Stock Custodian duties; 8. On April 29, 2019, she was instructed to count her cash reserve and her supervisor's cash reserve; 14. On unspecified date(s), she was forced to take leave; 15. On July 6, 2019, Manager Customer Service Operations told her that she would mediate a meeting between her and her Supervisor and Supervisor but failed to do so; 20. On November 18, 2019, Supervisor told her that she was scheduling her for a Pre- Disciplinary Interview at the Fort George Station. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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 Chap. 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”). Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts and applied the correct legal standard. With regard to the claims of harassment, specifically claims 1, 8, 9, 11, 12, 13, 18, 19, 21, and 22, the Commission notes that Complainant has not provided evidence that the alleged events happened at all. Despite Complainant’s allegations, Supervisor specifically denied that such events occurred. Report of Investigation at 393, 405-6, 408, 410, 412, 423-25, 428-29. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred; we find that she has failed to do so. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Sec., EEOC 2020004853 3 Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Therefore, Complainant has failed to establish that she was subjected to discriminatory harassment based on her race, color, national origin, disability, or retaliation as to these claims. Even assuming, without so finding, that all of the alleged events occurred, the Commission finds that Complainant has failed to provide any evidence that any of the claimed instances were due to any of her protected classes. It is well-settled that harassment based on an individual’s race, national origin, and sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her protected bases; (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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). It is well-founded that Title VII does not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive.” See Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784 (E.D. Wis. 1984). The Commission has held that such grievances, “while sometimes unpleasant, do not constitute harassment, even if done in a confrontational manner.” Felton M. v. Dep’t of Agric., EEOC Appeal No. 0120171203 (June 23, 2017). The Commission has long held that Title VII is not a civility code but is intended to prevent discriminatory behavior. Dolly H. v. Dep’t of Agric., EEOC Appeal No. 0120150414 (May 3, 2017); see also Eileen S. v. Dep’t of the Army, EEOC Appeal No. 0120170721 (Mar. 20, 2019) (finding no hostile work environment when, among other things, Complainant was told she “sucked” and that she “did not perform [her] job worth a damn,” and Complainant was told in front of other employees “you are ignorant and do not know what the hell you are talking about”). There must be a distinction made between discriminatory action on the part of the Agency, versus a combination of occasional personality clashes, common workplace grievances, and legitimate administrative actions with which Complainant disagrees, in order for a claim to be actionable. “Otherwise, the [Commission] will become a court of personnel appeals.” Alfano v. Costello, 294 F. 3d 365, 377 (2d Cir. 2002). Where Complainant has “adduced no evidence that [s]he was harassed because of [her] protected class characteristics,” Complainant’s claims of harassment must fail. Davis v Dep’t of the Army, EEOC Appeal Nos. 01A22812, 01A24469, 01A30558 (Nov. 2003). We find that her claims of harassment have failed so here. 2020004853 4 Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2020004853 5 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 August 25, 2022 Date