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

Equal Employment Opportunity Commission

Feb 7, 2022

Appeal No. 2020004183 (E.E.O.C. Feb. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hae T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020004183 Hearing No. 410-2020-00013X Agency No. 4K-300-0161-19 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 13, 2020, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order adopting the AJ’s decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Howell Mill facility in Atlanta, Georgia. On June 7, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), religion (atheist), and color (Black) when: 1. on or around November 28, 2018, and date(s) to be specified, Complainant was sexually harassed by coworkers and management failed to properly address the matter; 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. 2020004183 2 2. on March 6, 2019, Complainant was placed on Emergency Placement in an Off Duty Without Pay Status; 3. on March 22, 2019, Complainant received a letter regarding selecting her prime- time vacation leave, however, the period for selecting prime-time vacation leave ended on March 15, 2019; and 4. on April 19, 2019, Complainant was issued a notice of removal dated April 19, 2019, for Improper Conduct, violation of the zero-tolerance policy. The investigative record reflects the following pertinent matters relating to the subject claims. The following individuals were named the responsible management officials: the Supervisor of Customer Service (Supervisor), the Manager of Customer Service (Manager), and the Manager of Customer Service Operations (Operations Manager). On November 21, 2018, an employee asked Complainant for permission to pray over an employee Thanksgiving breakfast. Complaint File (CF), (Volume 1) at 196. In reference to the City Carrier Assistant (Carrier), Complainant allegedly stated, “What [?] I look like praying with a faggot [?] You can’t pray the straight back into him.” Id. Carrier overheard this comment. Id. On November 28, 2018, Complainant alleged that she informed Supervisor, and a second supervisor, of Carrier’s lack of uniform adherence. CF, V1 at 185. Shortly after her report, asserted Complainant, Carrier harassed and threatened her. Id. Additionally, Complainant stated that Carrier attempted to hit her with a mail float, but it hit a wall behind her instead. Supervisor contended that he was unaware of Carrier allegedly harassing Complainant. CF, V1 at 216. He was aware, however, of Complainant’s complaints regarding Carrier’s uniform and had informed Complainant that Carrier was still waiting to receive the proper uniform. CF, V1 at 217. On December 10, 2018, an investigative interview was held with Complainant regarding her interactions with Carrier. CF, V2 at 31. The investigative interview focused on the November 21 and 28, 2018 incidents. Complainant denied making homophobic statements or harassing Carrier. She acknowledged that others were present, but asserted that they were not credible witnesses since they were friends with Carrier. On February 11, 2019, an Initial Management Inquiry Process (IMIP) was initiated based on allegations of ongoing inappropriate behavior by Complainant that started on November 21, 2018. CF, V1 at 247; 251. The IMIP, initiated by the Human Resources Manager, was conducted by the Postmaster and the Manager of Learning Development and Diversity. The IMIP contained three allegations: 1) Complainant allegedly referred to Carrier as a “sissy, faggot, and gay”; 2) on November 21, 2018, Carrier alleged that Complainant stated “what I look like praying with a sissy, you can’t pray the straight back into him”; and 3) on November 28, 2018, Carrier alleged that Complainant screamed to him, “I can’t help that he is gay, I can’t help he is a sissy, he likes the same thing that I like. He is a bottom bitch, and it’s not my fault he is a faggot and can’t have kids.” 2020004183 3 Twelve witnesses, as well as Complainant and Carrier, were interviewed for the IMIP. CF, V1 at 249. The witnesses corroborated Carrier’s allegations against Complainant. CF, V1 at 251-265; 295-299. On March 6, 2019, the IMIP was completed. CF, V1 at 247. Thereafter, Manager placed Complainant on Emergency Placement in an Off Duty Without Pay Status. CF, V1 at 187; 228; 193 and CF, V2 at 30. On March 19, 2019, Manager held an investigative interview with Complainant regarding the November 28, 2018 incident between Complainant and Carrier. CF, V1 at 230, and CF, V2 at 34. Complainant re-asserted that it was Carrier who harassed her and Complainant continued to deny making homophobic comments towards Carrier. CF, V2 at 34-36. On or about March 20, 2019, Complainant asserted that the Manager sent her a letter regarding Prime Time Leave selections. CF, V1 at 187; 195. According to Complainant, Prime Time Leave selections began the first week of March and ended on March 15, 2019, yet the letter was sent to her after the close of selection period. CF, V1 at 187. Manager acknowledged that she sent the March 20, 2019 letter informing Complainant that she had until March 25, 2019 to submit her Prime Time Leave selections. CF, V1 at 195; 235. At the time, Manager had only recently been promoted and, only after the letter was sent, she was informed by a union representative that leave selections ended on March 15, 2019. CF, V1 at 235. The Manager acknowledged her error and denied that it was based on Complainant’s protected classes. Id. On April 19, 2019, Complainant was issued a Notice of Removal (Notice) by Manager. CF, V1 at 196; 238. The Operations Manager concurred on the decision. CF, V1 at 238. The Notice charged Complainant with: 1) Improper Conduct; and 2) Violation of Zero Tolerance Policy. Manager stated that following an internal investigation, it was determined that Complainant had been harassing Carrier for close to a year and that her comments were abusive, derogatory, and based on Carrier’s sexuality. CF, V1 at 238. Further, Manager noted that multiple witnesses attested to Complainant’s improper and harassing behavior. Id. 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 timely requested a hearing. On April 18, 2020, the AJ issued an Order to Show Cause Why Summary Judgement Should Not Be Entered. CF, V1 at 31. The AJ noted that the case stems from the interactions Complainant had with Carrier. According to the AJ, there was no indication that Carrier had sexually harassed Complainant as alleged. Based on the record, the AJ further determined that the Agency’s decision to place Complainant in an Emergency Placement In Off Duty Status was fully justified and non-discriminatory, and that the Agency had a valid basis for issuing the Notice of Proposed Removal. Regarding the leave issue, the AJ determined that Manager acknowledged her error, citing her status as a newly promoted manager, and that there was nothing in the record to indicate that the mistake was anything more. 2020004183 4 Complainant timely responded to the AJ’s Order, arguing that there were genuine issues of material fact in dispute and that a grant of summary judgment in the Agency’s favor would be inappropriate. Further, Complainant asserted that discovery was necessary to complete the record on issues, such as whether there was something more behind Manager’s acknowledged mistake. On May 11, 2020, in consideration of Complainant’s response, the AJ issued a decision without a hearing in favor of the Agency. CF, V1 at 19. The AJ determined that Complainant failed to demonstrate that the Agency’s legitimate, nondiscriminatory reasons for its actions were pretext for discrimination. Id. On May 13, 2020, the Agency issued a final decision adopting the AJ’s determination of no discrimination. CF, V1 at 15. CONTENTIONS ON APPEAL On appeal, Complainant submits arguments that she had previously provided in her response to the AJ’s Order to Show Cause. In response, the Agency asserts that Complainant has not produced sufficient evidence for the Commission to reverse the its final decision affirming the AJ’s finding of no discrimination. 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 Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. 2020004183 5 At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We find that summary judgment was appropriate here, and the Agency was entitled to a grant of summary judgment as a matter of law. Having considered Complainant's arguments in her opposition to the motion for summary judgment and on appeal, we find that no genuine issue of material fact exists; the record is adequately developed; and no findings of fact need be made by weighing conflicting evidence or assessing witness credibility. Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). We find that the Agency has articulated legitimate, nondiscriminatory reasons for its action. Specifically, in this matter, the record does not support Complainant’s assertions that she was sexually harassed by Carrier, or any other employees (claim 1). Instead, the record demonstrates that Complainant was the one that directed abusive, sexually charged comments towards Carrier, which ultimately resulted in her placement on an Emergency Placement in an Off Duty Without Pay Status (claim 2). Complainant’s actions later resulted in her receiving the Notice of Removal (claim 4). Complainant argued that these reasons were just excuses and reiterated that it was Carrier who harassed her, that management disciplined the wrong individual. 2020004183 6 Yet, Complainant provides no evidence to support her contentions. Instead, the record is replete with witness statements asserting that Complainant was the clear aggressor, targeting Carrier based on his sexual orientation. Regarding Complainant’s allegation that Manager intentionally sent a delayed letter regarding Prime Time Leave selections, the record demonstrates that Manager sent this letter in error (claim 3). While Complainant argued that this was pretext, and that Manager clearly intended to harm her, there is no evidence to demonstrate that Manager was motivated by discriminatory animus in citing the incorrect date for the end of the selection period or in the delayed mailing of the letter. Rather, the record indicates that this was no more than a mistake made by a newly promoted manager. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Based on the record, there is no evidence to demonstrate that management’s various actions were motivated by discriminatory animus. Hostile Work Environment As a preliminary matter, we note that a finding of a hostile work environment for claims 2 - 4, which constituted discrete acts of disparate treatment, is precluded by our determination that Complainant failed to establish that any of the Agency’s actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). In considering whether any of the actions listed by Complainant, whether individually or collectively, constitute harassment, the Commission notes that 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; (3) the harassment complained of was based on a statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an 2020004183 7 intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Generally, in assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Dep’t of the Treasury, Request No. 05970077 (March 13, 1997); Lashawna L. v. Nuclear Reg. Comm’n., EEOC Appeal No. 2019002093 (Sept. 22, 2020), req. for recon. denied EEOC Request No. 2021000455 (Dec. 30, 2020) (complainant detailed several incidents of harassment and provided names of witnesses who corroborated her claims and agency failed to meet its burden of articulating legitimate, nondiscriminatory reasons). Moreover, 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 it to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001). We note that with regard to retaliatory harassment, Complainant only needs to show that such actions are the type that would dissuade a reasonable employee from making or supporting a charge of discrimination. See Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53 (2006); see also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016); Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Assuming, arguendo, that Complainant established elements 1 and 2 of a prima facie case of harassment, we find that based on the record Complainant has not met the requirements of elements 3 or 4. In order to prevail, a complainant must provide more than just generalized allegations of harassment. See Alise A. v. U.S. Postal Serv., EEOC Appeal No. 2019005036 (July 20, 2021) (complainant alleged that her coworker frequently disparaged her and initiated a verbal and physical altercation due to her protected classes. However, complainant failed to provide evidence beyond her own conclusory statements. Sympathetic witness statements attested that complainant and the coworker had a contentious relationship but did not connect such conflict to the complainant’s protected classes). Ultimately, conclusory statements of harassment, without more, will not support a complainant’s claim of harassment. Here, in support of her claim, Complainant contended that she was the one sexually harassed when Carrier, and other non-referenced employees, targeted her on November 28, 2018 (claim 1). However, she provided only her bare statements without supporting evidence. Instead, the record has an abundance of witness statements from her colleagues that demonstrate that it was Complainant who grossly sexually harassed Carrier based on his sexual orientation. 2020004183 8 Regarding the other claims, there is no evidence that management engaged in the actions in order to harass Complainant because of her protected classes. Here, the Emergency Placement (claim 2) and the subsequent Notice (claim 4) were based on management’s internal investigation which determined that Complainant violated the Agency’s Zero Tolerance policy. As for the Manager’s error in requesting Complainant’s Prime Time Leave selections (claim 3), there was no supporting evidence to demonstrate that it was anything more than an error made by a new manager. In sum, Complainant did not provide the evidence required to support a finding of discrimination or hostile work environment or any discriminatory animus. The Commission also recognizes that ordinary managerial and supervisory duties such as taking action in the face of performance shortcomings, are part of normal operational management. Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (June 16, 2017). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’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 2020004183 9 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. 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. 2020004183 10 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 February 7, 2022 Date