[Redacted], Gilberto S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jul 14, 2021

Appeal No. 2020002491 (E.E.O.C. Jul. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilberto S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020002491 Agency No. 4K-270-0109-19 DECISION On February 12, 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 January 13, 2020, 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., 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented concern whether Complainant was subjected to discrimination when: a coworker touched him inappropriately and he was told to withdraw his EEO complaint. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q- 01/O, at the Agency’s North Point Station in Winston-Salem, North Carolina. 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. 2020002491 2 On September 10, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (mental), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when: 1. On May 13, 2019, he was touched inappropriately by a coworker (C1); and 2. On June 3, 2019, he was told to sign a withdrawal form for his EEO complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. CONTENTIONS ON APPEAL Neither Complainant nor the Agency submitted contentions on appeal.2 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, 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 Claim 2 As a preliminary matter, we find that Complainant has failed to substantiate his allegation in claim 2. Complainant bears the burden of proving, by a preponderance of the evidence, that the alleged discriminatory act occurred. While we acknowledge that Complainant vehemently asserted during the EEO investigation that the alleged incident occurred, the record reflects that the named responsible management official denied the allegation. 2 We note that the documents that Complainant submitted along with his Notice of Appeal are already contained in the ROI. 2020002491 3 Because Complainant did not request a hearing before an EEOC AJ, we do not have the benefit of an AJ’s credibility determinations of the witnesses in the case. Based on our review of the record evidence, we conclude that Complainant cannot meet his burden because the evidence is at best equipoise. See Lore v. Dep’t of Homeland Sec., EEOC 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). Claim 1 We turn now to claim 1. Here, Complainant alleged that on May 13, 2019, while he “was discussing [his] EEOC” with his first-level supervisor (S1) and a coworker (C2), C1 touched him inappropriately by pinching his nipple. He asserted that S1 failed to take effective action to address the harassment, given that S1 did not discipline C1 for the incident. S1, on the other hand, asserted that he did not witness C1 pinch Complainant’s nipple. S1 maintained that he only learned about the incident when the Agency’s EEO Office informed him that Complainant had filed an EEO complaint. S1 asserted that, when he learned about the incident, he initiated an internal investigation and interviewed C1 and Complainant, who was represented by the union. S1 emphasized that, as a result of the investigation, he separated the workspaces of Complainant and C1. C2 confirmed that she saw C1 twist Complainant’s nipple. For Complainant to establish a prima facie case of sexual harassment, he must prove, by a preponderance of the evidence, the existence of five elements: (1) that he is a member of a statutorily protected class; (2) that he was subjected to unwelcome conduct related to his sex; (3) that the harassment complained of was based on his sex; (4) that the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903 (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 Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The Commission has stated that, “unless the conduct is quite severe, a single incident or isolated incidents of offensive sexual conduct or remarks generally do not create an abusive environment.” The Commission has further stated that “the Commission will presume the unwelcome, intentional touching of a [complainant’s] intimate body areas is sufficiently offensive to alter the condition of her working environment and constitute a violation of Title VII.” See Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915- 050 (March 19, 1990). 2020002491 4 To ultimately prevail on a claim of retaliatory harassment, Complainant need only show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See also Janeen S. v. Dep’t of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). Even if we assume arguendo that Complainant can establish the first four elements of the prima facie case for sexual harassment, we must still consider element (5) concerning whether liability can be imputed to the Agency. In the case of coworker harassment, an agency is liable for acts of harassment in the workplace where the agency (or its agents) either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it. See Enforcement Guidance on Vicarious Employer Liability at n. 58.3 Furthermore, an agency will be liable for harassment by a coworker or non-employee if management knew or should have known of the misconduct, unless the agency can show that it took immediate and appropriate corrective action. Enforcement Guidance, supra, citing 29 C.F.R. § 1604.11(d) Here, we find no basis for imputing liability to the Agency because the record persuasively shows that when S1 first learned about the harassment, he took prompt and effective action by moving C1 away from Complainant. In reaching this conclusion, we acknowledge Complainant’s contention that the lack of discipline made the remedial action ineffective; however, we are disinclined to agree with Complainant, given that Complainant has not alleged or shown that C1 continued to harass him despite the remedial action. Further, the preponderance of the evidence does not establish that the alleged single incident of nipple pinching/twisting was motivated by discriminatory or retaliatory animus, even if it occurred while Complainant was discussing his EEO complaint/matters.4 Given the circumstances here, we ultimately conclude that Complainant cannot prevail on his claim of discrimination or harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 3 “Although the affirmative defense does not apply in cases of harassment by coworkers or non- employees, an employer cannot claim lack of knowledge as a defense to such harassment if it did not make clear to employees that they can bring such misconduct to the attention of management and that such complaints will be addressed.” See Enforcement Guidance, supra at n. 58. 4 The record does not show that C1 made references to Complainant’s EEO activity when he pinched/twisted Complainant’s nipple. 2020002491 5 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). 2020002491 6 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 14, 2021 Date