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

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2021001830 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hester S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001830 Agency No. 1G-331-0088-20 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 21, 2020, dismissing her complaint alleging unlawful 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Registry Clerk at the Agency’s Miami Processing and Distribution Center in Miami, Florida. Believing that she was subjected to unlawful discrimination on the bases of race (African- American), national origin (not specified), sex (female), religion (Christian), and age (y.o.b. 1975), Complainant filed a formal EEO complaint on November 9, 2020. On December 21, 2020, the Agency issued the instant final decision where it framed the claim as follows: On August 2, 2020, an Acting Supervisor made a sexually explicit comment to Complainant on the workroom floor. 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. 2021001830 2 In its December 21, 2020 decision, the Agency dismissed the formal complaint for failure to state a claim. The Agency noted that Complainant did not identify any other incidents and did not allege a harm or loss to a term, condition, or privilege of her employment. Further, the Agency acknowledged that Complainant was “offended and dismayed” by the supervisor’s comment, but stated that Title VII is not a general civility code. Complainant filed the instant appeal. On appeal, she contends, “My case was never settled. The initial investigation was never completed.” Moreover, she believes the Acting Supervisor was drunk during the incident, “because no one in their sober mind would tell another co-worker ‘You’re not wearing any panties’ and that ‘Your pussy is fat’ in front of two witnesses.” She also attached a letter from a psychologist describing the incident and Complainant’s difficulties sleeping and concentrating. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is “sufficiently severe or pervasive to create a discriminatory hostile or abusive work environment.” This standard utilizes an objective test (whether a reasonable person would find the environment hostile or abusive) as well as the victim's subjective perception that the environment is abusive. In order to determine whether an environment is “hostile” or “abusive,” the Commission must look at all of the factual circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is relevant in determining whether the complainant actually found the environment abusive.” In addition, while “psychological harm, like any other relevant factor, may be taken into account, no single factor is required.” Harris, 510 U.S. at 22-23. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Complainant cannot prove a set of facts in support of the claim which would entitle Complainant to relief. The trier of fact must consider all of the alleged harassing incidents and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). 2021001830 3 Here, while the alleged remark is unprofessional and insulting, as an isolated incident it is not sufficient to state a claim of discriminatory harassment that violates Title VII. EEOC has consistently stated that their regulations are not to be used as a “general civility code.” Lowe v. United States Postal Service, EEOC Appeal No. 0120121684 (March 7, 2013). Finally, we note that the Commission has previously held that an otherwise invalid complaint will not be convened to a cognizable claim merely because a complainant alleges physical and/or emotional injury. See Larotonda v. USPS, EEOC Appeal No. 01933846 (March 11, 1994). We caution the Agency, however, to conduct an management inquiry into the issue and address any misconduct on the part of the employee in question before other incidents occur which together may amount to a violation of Title VII. CONCLUSION Accordingly, the Agency’s final decision to dismiss the formal complaint was proper and is AFFIRMED. 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, 2021001830 4 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. 2021001830 5 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 May 24, 2021 Date