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

Equal Employment Opportunity Commission

Mar 18, 2021

Appeal No. 2021001730 (E.E.O.C. Mar. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilda M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021001730 Hearing No. 470-2019-00160X Agency No. 1C-401-0009-18 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s December 10, 2020, final order concerning an 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 AFFIRMS the Agency's final order finding no discrimination. ISSUE PRESENTED The issue presented is whether substantial evidence in the record supports the EEOC Administrative Judge's (AJ) decision that Complainant did not establish that the Agency subjected her to hostile work environment harassment on the bases of race, national origin, color, and reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Postal Supplemental Employee (PSE) working at the Agency’s Processing and Distribution Center (P&DC) in Lexington, Kentucky. Report of Investigation (ROI) at 42. 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. 2021001730 2 Complainant requested a schedule change to start her work hours at 8:00 p.m. instead of 10:00 p.m. to care for her three children. ROI at 69. The Plant Manager then apparently approved a request for a schedule change for Complainant from October 10, 2017, through November 12, 2017, based on her family and personal hardship needs. Id. at 117, 127. But according to Complainant on October 10, 2017, when she reported to work at 8:00 p.m., the Manager of Distribution Operations (MDO1) confronted her in front of coworkers, stating “Hey, dirty African, liar and thief of work hours! Who allowed you to come to work at night shift?" Id. at 69. Complainant averred she was scheduled to work from 8:00 p.m. to 4:00 a.m. but was sent home at 10:00 p.m. Id. at 70. MDO1 however denied sending Complainant home early on October 10, 2017, and averred that he simply said that Complainant could not report for work early. Id. at 93. MDO1 maintained that Complainant worked a full 8 hours on October 10, 2017. Id. at 94. According to Complainant, when she arrived to work the next day on October 11, 2017, MDO1 shouted to her "Dirty girl, you leave this place in 5 minutes, otherwise, I will get you arrested by the Police! Thief!" Id. at 69. Complainant declared that she was supposed to have worked from 10:00 p.m. to 6:00 a.m., but she went home instead. Id. at 70. Complainant stated that her first- level supervisor (S1) and everyone on the tour witnessed the MDO1’s conduct towards her. Complainant averred that she also reported the MDO1’s behavior to her Union Representative. Id. at 71 MDO1 however denied Complainant’s allegations and averred that Complainant worked a full 8 hours on October 11, 2017. Id. at 94. S1 also maintained, however, that she had no knowledge regarding Complainant’s allegations that she was called derogatory names on October 10 and 11, 2017. Id. at 131. According to S1, she witnessed the MDO1 inform Complainant to report to work at 10:00 p.m. on October 10, 2017, the same as other PSEs. Id. at 131-132. S1 stated that when Complainant reported to work again at 8:00 p.m. on October 11, 2017, the MDO1 simply reiterated to Complainant that she needed to report to work at 10:00 p.m. Id. S1 maintained that Complainant’s allegation that MDO1 told her “Dirty girl, you leave this place in five minutes, otherwise I will get you arrested by the Police Thief” never took place. Id. at 132. The Plant Manager similarly maintained that he had no knowledge regarding Complainant’s allegations that the MDO1 had made derogatory remarks to her. Id. at 115. A second Manager of Distribution Operations (MDO2) stated that Complainant had told him that she felt that MDO1 treated her differently with regard to her starting time, but that Complainant never mentioned that she was being subjected to derogatory comments by MDO1. Id. at 169-170. Complainant further attested that on November 30, 2017, the machine she was performing her duties on stopped working, and while she was waiting for the machine to be repaired she began sorting and organizing packages. Id. at 70. After getting into a disagreement with MDO1, Complainant maintained that S1 then asked for her badge and instructed that she clock out and leave the building. Id. A second supervisor (S2) explained that there was no reason for the MDO1 to request Complainant’s ID and timecard, so he told Complainant to keep them. Id. at 155-156. 2021001730 3 Complainant additionally averred that on December 21, 2017, MDO1 verbally attacked her by shouting, instructing her to fill her assigned machine with letters or he would dismiss her from her position. Id. at 76. However, according to MDO1, he observed Complainant texting on her cell phone on December 21, 2017, so he told her to immediately put away her phone. MDO1 explained that Complainant then became agitated and refused to put her phone away, so he then contacted her supervisor that she needed to be sent home with a pre-disciplinary interview for the failure to follow instructions. Id. at 98. On December 5, 2017, Complainant contacted an EEO Counselor and filed an EEO complaint on February 5, 2018, alleging discrimination and harassment by the Agency on the bases of race (African-American), national origin (Democratic Republic of Congo), color (Black), and reprisal for prior protected EEO activity when: 1. On or around October 10 and 11, 2017, and November 30, 2017, MDO1 called her derogatory names and sent her home; and 2. On December 21, 2017, MDO1 shouted at her, and threatened to send her home. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on October 28 and 29, 2020, and subsequently issued a decision in favor of the Agency. The AJ specifically did not find Complainant’s allegations credible that MDO1 called her derogatory names, such as “dirty African” and “thief.” In so finding, the AJ observed that two of Complainant’s witnesses testified that they did not recall Complainant telling them that MDO1 had called her either a “dirty African” or a “thief.” The AJ found Complainant’s claims about MDO1 to be unlikely, as she made multiple complaints about MDO1 but never mentioned that he called her derogatory names. The AJ additionally observed that there was significant confusion among managers and supervisors regarding Complainant’s schedule and Complainant was told to go home on multiple occasions after she showed up for work early or on her day off. The AJ, however, found no evidence that the issues with Complainant’s schedule had anything to do with her race, color, or national origin. The AJ found that management credibly testified that at the time Complainant was sent home and told not to return until 10:00 p.m., all PSEs were coming in at 10:00 p.m. The AJ therefore found no evidence that Complainant was singled-out based on her protected classes. The AJ further found that MDO1 credibly testified that Complainant was sent home in December 2017, after he observed her texting instead of working. The AJ noted that assuming Complainant’s testimony that she could not work because her machine was down to be true, there was insufficient evidence to show that Complainant’s protected classes was the motivating factor for the situation. 2021001730 4 The AJ found that while Complainant and MDO1 had a difficult relationship, there was insufficient evidence to support Complainant's claims of discrimination or retaliation. The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Neither party has filed a brief on appeal. STANDARD OF REVIEW 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.” Universal Camera Corp. v. National Labor Relations Board, 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. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS Hostile Work Environment To establish his harassment claim, Complainant must show that: (1) she is a member of a statutorily protected class and/or was engaged in prior EEO activity; (2) she was subjected to unwelcome verbal or physical conduct related to her membership in that class and/or her prior EEO activity; (3) the harassment complained of was based on her membership in that class and/or her prior EEO activity; (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); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. 2021001730 5 Complainant must also prove that the conduct was taken because of a protected basis -- in this case, her race, national origin, color, or prior protected activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Upon review, we find substantial evidence in the record supports the AJ’s decision that Complainant did not establish that she was subjected to a hostile work environment, as alleged. In so finding, like the AJ, we note that no employee in the record has corroborated Complainant’s allegations that MDO1 subjected her to any derogatory comments. We note that Complainant alleged that S1 and everyone on her tour witnessed MDO1’s derogatory conduct towards her, and she also reported the MDO1’s behavior to her Union Representative. However, S1 and all employees who submitted testimony and statements for the record attested that Complainant did not report to them that the MDO1 had made the alleged derogatory statements to her. The Union Representative also did not specifically testify that Complainant complained that MDO1 made derogatory remarks to her. Hearing Transcript (Hr’g Trans.), Vol. I at 111-120. The record simply reflects that no one witnessed MDO1 making any of the alleged derogatory comments to Complainant. We note that S1 specifically testified that Complainant’s allegations did not occur as Complainant alleged on October 11, 2017, and Complainant was not subjected to threatening or derogatory comments by MDO1. Hr’g Trans., Vol. II at 83. S2 similarly testified that he never witnessed MDO1 making derogatory comments to Complainant regarding her protected classes. Id. at 52-52. In addition, while Complainant may have been sent home early on some occasions, there is simply no evidence in this case that MDO1 was motivated by discriminatory or retaliatory animus. We find that while Complainant’s work environment may not have been ideal, substantial evidence in the record supports the AJ’s decision that Complainant did not establish that any of the MDO1’s actions towards her were due to her protected classes. 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 order. 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. 2021001730 6 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). 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. 2021001730 7 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 March 18, 2021 Date