[Redacted], Janel B., 1 Complainant,v.Louis DeJoy, U.S. Postmaster General, United States Postal Service (Northeast Region), Agency.

Equal Employment Opportunity Commission

Dec 23, 2021

Appeal No. 2020004415 (E.E.O.C. Dec. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janel B.,1 Complainant, v. Louis DeJoy, U.S. Postmaster General, United States Postal Service (Northeast Region), Agency. Appeal No. 2020004415 Hearing No. 520-2017-00246X Agency No. 4B-120-0018-16 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 June 16, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant (CCA), Q-01, at the Agency’s Post Office in Ilion, New York. Complainant had reported to management that she was being harassed by a male co-worker. During management’s investigation of the matter, Complainant worked out of the Herkimer Post Office. On May 14, 2016, Agency management informed Complainant that the findings of the investigation into her allegations were inconclusive and instructed her to return to her duty station at the Ilion facility. 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. 2020004415 2 Complainant disagreed with management’s decision and management offered her the opportunity to work at one of several different facilities. Complainant did not return to her home duty station in Ilion. On August 23, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female) and in reprisal for prior protected EEO activity when, on May 14, 2016, Complainant disagreed with the sexual harassment investigation that was conducted, and which resulted in her receiving notification to return back to her CCA position in Ilion, New York.2 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. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. In the decision, the AJ determined that Agency management took swift action in addressing and investigating Complainant’s complaint of co-worker harassment. After finding that Complainant’s allegations were inconclusive, the Agency developed a plan to ensure that the alleged harassment ceased. While Complainant was not satisfied with the results of the investigation and plan, the AJ noted that her unhappiness was not tantamount to a materially adverse action by the Agency. Furthermore, the AJ found that there was no evidence of discriminatory or retaliatory animus. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 2 In its letter accepting the complaint, the Agency noted that if it was Complainant’s intent to include a sexual harassment claim, that allegation was untimely raised with an EEO Counselor. The EEOC Administrative Judge assigned to the matter also determined that the sexual harassment claim would be untimely raised. Complainant raised no challenges to either the Agency or the AJ’s determination regarding the claim; therefore, the Commission finds that the underlying sexual harassment claim is not before us. 2020004415 3 CONTENTIONS ON APPEAL On appeal, Complainant states that her appeal is focused on the Agency’s alleged reprisal. Complainant argues that the AJ erred in granting summary judgment in favor of the Agency as she has established that the Agency retaliated against her. Complainant contends that the Agency manipulated the investigation to favor the alleged harasser by introducing the harasser’s claims and that the Agency’s conclusion that the report was “inconclusive” was itself evidence of reprisal because it disregarded the harasser’s admissions. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant has failed to establish such a dispute. Complainant has presented no evidence demonstrating that management officials in this matter harbored discriminatory or retaliatory animus. Although Complainant was told to return to the Ilion location, she did not return and was not forced to return, and there was no evidence that any other adverse action was taken against her because of her refusal to return. She averred that she alleged retaliation because “the whole situation was not resolved.” We recognize that the anti-retaliation provisions of the EEO statutes seek to prevent an employer from interfering with an employee’s efforts to advance enforcement of the statute’s basic guarantees and are not limited to actions affecting employment terms and conditions. Burlington Northern and Santa Fe Railroad Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006). However, Complainant’s disagreement with the outcome of the investigation and the order to return are not sufficient to give rise to a question of material fact. 2020004415 4 Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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). 2020004415 5 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. 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 December 23, 2021 Date