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

Equal Employment Opportunity Commission

Aug 10, 2021

Appeal No. 2020003526 (E.E.O.C. Aug. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hettie T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020003526 Agency No. 4C-440-0055-19 DECISION 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 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Lead Clerk at the Agency’s South Toledo Post Office in Toledo, Ohio. On May 14, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African-American), color (Black), and in reprisal for prior protected EEO activity (“denied FMLA after EEO was filed”). By letter dated June 10, 2019, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claim: 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. 2020003526 2 Complainant alleged discriminatory harassment as evidenced by the following incidents: 1. On January 23, 29, March 12, 13, 2019 and possible other dates to be specified, Complainant was berated, yelled at, and threatened by co-workers on the workroom floor; 2. On March 19, 22, 2019, management threatened to discipline her; 3. On March 20, 2019, Complainant was given a pre-disciplinary interview (PDI); and 4. On March 22, 2019, management made fun of her medical condition and denied her leave for the condition.2 After an 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).3 The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that Complaint failed to establish that she was subjected to unwelcome verbal or physical conduct, that the conduct was based on her protected status, and that the conduct was sufficiently severe or pervasive that it created a hostile work environment. In reaching this decision, the Agency noted that a workplace climate assessment revealed no racism and determined that the improper behavior between employees was related to communication issues. Regarding imputing liability to the employer, the Agency, in its final decision, noted that one of the clerks with whom Complainant had issues, received a PDI from management.4 2 The Agency, in its acceptance letter, noted that Complainant also provided information regarding an FMLA condition. The Agency noted that the enforcement and administration of the FMLA is done by the Department of Labor (DOL), not the EEOC. Thus, the Agency informed Complainant that challenges to the Agency’s actions regarding FMLA should be directed to DOL. However, the Agency found that she could raise these matters as background information to her harassment claim. 3 While the Agency found that Complainant neither requested a hearing or a final agency decision, the record contains a letter from Complainant dated January 21, 2020 requesting a final agency decision. 4 Complainant asserts that while one of her alleged harassers (C1) received a PDI, C1 was not subsequently disciplined. 2020003526 3 The instant appeal followed. On appeal, Complainant asserts that the Agency’s Workplace Assessment, which found racism did not exist at the worksite, was incorrect. Specifically, Complainant set forth that the Workplace Assessment contained various statements from employees stating that there were racial issues at the Agency’s facility. Complainant further asserts that the EEO Investigator wrongfully concluded that a statement from a non-postal employee was immaterial. However, Complainant asserts that this individual was a “direct witness” to one of her harassers saying racially inappropriate things. Complainant asserts that she provided a letter in May 2018 to management about the alleged harassing conduct based on race at the facility, which was signed by both her and another African American clerk. ANALYSIS AND FINDINGS 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”). To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994). With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective 2020003526 4 opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id. The record reflects that Complainant is alleging that she had been subjected to harassment based on her protected classes by two clerks (C1 and C2) and that management has failed to take proper action. Complainant is also alleging that some members of management subjected her to harassment by subjecting her to a PDI, threatening to take disciplinary action against her, and denying her leave requests based on her protected EEO classes. The record is insufficient to allow a determination on the merits of the instant formal complaint. Our regulations and EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110)(rev. Aug. 5, 2015), requires agencies to develop a complete and factual record. See 29 C.F.R. § 1614.108(b), EEO MD-110, Chapter 6. Complainant, in her affidavit, asserts there were numerous witnesses to her being yelled at and bullied in the workplace by two named clerks (C1 and C2) (claim (1)). Report of Investigation (ROI) at 78, Question 17.5 However, the record does not contain affidavits for most of these individuals. The record reflects that the EEO Investigator initially sent two of the witnesses (W1 and W2) identified by Complainant an affidavit request. ROI 232-244. However, they did not respond to the request. ROI at 46. The record does not reflect that the Investigator followed up with these two individuals regarding the affidavit requests. We note that, on appeal, Complainant submits a letter dated May 7, 2018, which she notified management she was being subjected to a hostile work environment based on race. The letter is signed by Complainant and one of the individuals (W2) whom Complainant identified as a witness in her affidavit (and who apparently failed to complete a requested affidavit). ROI at 78. The May 7, 2018 letter from Complainant provides, in pertinent part, “I have been treated with prejudice for a long time by the Caucasian clerks at this station. There is a double standard when it comes to African American clerks and them. [A named employee] is also an African American clerk who has been here for over a decade, and he also feels their wrath. They will continue to do whatever and say whatever because they know that nothing will be done…” Complainant asserts with respect to claim (2) that a named manager (M1) threatened to discipline her. ROI at 81, Question 27. 5 We note that when citing to the Report of Investigation herein, we reference the Bates Number located at the center bottom of the page. 2020003526 5 The record reflects that the EEO Investigator requested an affidavit from the named supervisor and followed up with her twice. However, the manager did not respond to the affidavit request. ROI at 193-212. Regarding claim (3), Complainant asserts that a named manager (M2) (race: Caucasian, color: white) subjected her to a PDI based on her protected classes. ROI at 84, Question at 39-40. The record reflects that M2, in his affidavit, asserted that he could not recall if he gave complainant a PDI in March 2019.6 ROI at 131. We note that the record contains a copy of the PDI between M2 and another clerk (C1) in March 2019. ROI 190-192. However, the record does not contain a copy of the PDI in March 2019 between M2 and Complainant. The record does not reflect that the Investigator requested a copy of this PDI between M2 and Complainant. Complainant, attached to her affidavit, a signed statement by a contract driver (D1) for the Agency. Therein, D1 asserts that in 2018, while at the station, [a named clerk, C2]7 “made multiple derogatory racially charged comments to the effect that ‘the blacks do whatever they want to around here’ referring to [Complainant] and others by name. Also, she made the comment that ‘black people always steal’…Several days later while making another drop shipment, I made [Complainant] aware of this specific incident. Several days following that…postal supervisory staff approached me about the incident., they had me come to the office and explain and describe the incident…” ROI at 105. The record contains a notation from the EEO Investigator that the Investigator did not find the suggestion of D1 as a witness to be relevant to the accepted claims and that D1 was not an Agency employee. ROI at 61-62. We find an affidavit from D1 would be relevant to the workplace environment that existed at the time in question based on D1’s unsworn signed statement that C2 (an alleged harasser as identified by Complainant) made various derogatory racial statements to him regarding African American employees. We acknowledge that D1 is not a federal employee and is not required to participate in the instant EEO investigation. However, the Investigator could have attempted to obtain D1’s affidavit. We note that the record contains a copy of a Workplace Climate Assessment conducted on February 8, 2019, regarding the environment at the South Toledo Post Office. ROI at 262. According to the findings of the Climate Assessment, racism was not revealed by the investigation. However, the report reflected that some employees and supervisors stated in their interviews that racism was exhibited in the workplace. ROI at 270. The record contains summaries of interviews with employees regarding the workplace environment.8 6 The record reflects that M2 appears to be now working at a different agency facility. ROI at 123. 7 The clerk referenced in the letter by the contract driver is one of the clerks Complainant alleges harassed her based on her protected classes. 8 We note that these summaries are unsigned unsworn statements. ROI at 272. 2020003526 6 While some clerks stated that they are not aware of any incidents that could be interpreted as racial,9 other employees suggested the workplace is filled with racial tension. ROI at 280, 284. One clerk indicated that C2 is “a little racist.” ROI at 281. In addition, a supervisor stated that she thinks “there is racism because [C1 and C2] only have trouble with the black clerk” (referring to Complainant). ROI at 282. The record does not reflect that the Investigator followed up with these employees regarding their alleged statements which are part of the Workplace Climate Assessment. Based on the foregoing, we find that the record before us is inadequate for us to issue a determination on the merits of Complainant’s complaint. Thus, we VACATE the Agency’s final decision finding no discrimination and we REMAND this matter to the Agency to conduct a supplemental investigation in accordance with the ORDER below. ORDER 1. The Agency shall ensure that the investigator obtain affidavits from all individuals set forth in Complainant’s affidavit as possible witnesses to the alleged behavior of C1 and C2 (claim (1)) (ROI at 78, Question 17). These affidavits shall address whether these individuals had any knowledge of C1’s and C2’s behavior toward Complainant and if they had any knowledge of C1’s and C2’s motivation for their alleged behavior. The affidavits shall include follow up requests for affidavits from the two individuals (W1 and W2) who did not respond to the EEO Investigator’s initial request for affidavits (ROI at 232-244). 2. The Agency shall ensure that the investigator obtain an affidavit from M1 regarding Complainant’s claim that she allegedly threatened Complainant with disciplinary action (claim (2)) (ROI at 81, Question 27; ROI 193-212). 3. The Agency shall ensure that the investigator obtains a copy of the PDI between M2 and Complainant in March 2019 (claim (3)). Thereafter, the Agency shall ensure the investigator obtains a supplemental affidavit from M2 regarding the PDI and share with M2 a copy of the PDI. The supplemental affidavit shall address whether M2 now recalls (after being shown a copy of the PDI) the reasons for him conducting the PDI at issue with Complainant. 9 The record contains a signed statement from an Acting Manager (race:African American) at the time. Therein, the Acting Manager asserts that she did not believe the issues between Complainant and C1 and C2 to be based on race. ROI at 173. Rather, the Acting Manager asserts that she believed the behavior to be due to a lack of respect for Complainant due to perceived issues with her attendance and her having less years of service. ROI at 173. Another supervisor (race: Caucasian, color: white) during the relevant period indicated that she believed C1 and C2’s conduct toward Complainant stemmed from what they perceived as Complainant’s lack of work due to attendance issues which required C1 and C2 to put in overtime. ROI at 180. 2020003526 7 4. The Agency shall ensure that the investigator obtains affidavits or supplemental affidavits from the individuals, who according to the Workplace Climate Assessment, made statements that certain clerks at the facility exhibited racist behavior (ROI 281-282). The affidavits and/or supplemental affidavits shall address what actions they believe were based on race and why they believed these actions were based on race. 5. The Agency shall ensure that the investigator tries to obtain an affidavit from D1 (a non- Agency employee) regarding his signed letter pertaining to the racial derogatory statements C2 allegedly made to him. 6. The Agency shall ensure that the investigator obtains any other affidavits or documentation not specifically requested in the Order, and consistent with this opinion, which may be relevant in determining the merits of Complainant’s complaint. 7. The Agency shall ensure that the investigator completes the supplemental investigation within sixty (60) calendar days from the date this decision is issued. Thereafter, the Agency shall provide Complainant, within thirty (30) calendar days from the date the Agency completes the supplemental investigation, an opportunity to respond to the supplemental investigative report. The Agency shall issue a new final agency decision, with appeal rights to the Commission, within thirty (30) calendar days of Complainant’s response or, if Complainant fails to respond, within thirty calendar days following the last day Complainant would have been permitted to respond. Copies of the completed supplemental investigation and the new final agency decision must be submitted to the Compliance Officer, as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). 2020003526 8 Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020003526 9 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2020003526 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 August 10, 2021 Date