[Redacted], Joannie V., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jul 15, 2021

Appeal No. 2020000588 (E.E.O.C. Jul. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joannie V.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2020000588 Agency No. 1C-452-0001-19 DECISION On September 21, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) per 29 C.F.R. § 1614.403(a), from an August 21, 2019 final Agency decision (FAD) 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked nights for the Agency as a full-time Claims & Inquiry Clerk (rewrap cage), PS-06, at the Cincinnati Network Distribution Center in Cincinnati, Ohio. Nights coincides with Tour 1 (8:01 PM - 3:59 AM). On February 18, 2019, Complainant filed an EEO complaint, as amended, alleging in relevant part that that the Agency subjected her to discrimination and harassment based on race (White), sex (female), religion (Christian), disability (post-traumatic stress disorder, panic disorder, depression, anxiety, back, sciatica) and reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when: 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. 2020000588 2 3. Starting on January 3, 2018, she was humiliated in front of coworkers. The primary perpetrator was Coworker (CW) 1 (Clerk - rewrap, female), and the secondary was CW 2 (Clerk - keying stations, Tour 2 which is generally 4 AM to noon, female; Black - according to SDO 1 identified below). 4. She was denied overtime opportunities starting on July 31, 2018, first by Manager of Distribution Operations (MDO 1 - female), and later by the Supervisor of Distribution Operations (SDO 1 - African American, female, Baptist) and MDO 2 (female, non- denominational). CW 2, CW 3 (Mail Processing Clerk, Tour 2, White, female) and CW 4 got overtime in rewrap (CW 4 - Clerk - rewrap, Tour 2, in an email to the EEO investigator Complainant suggested CW 4 who is female was white by listing her, CW 2, and CW 3 as comparative employees but only mentioning CW 2 did not “look like me...”). Report of Investigation (ROI), Ex. 3, p. 78, Bates No. 405. 5. On September 21, 2018, the Surface Visibility Coordinator (Coordinator) (White, female) tried to intimidate her into not filing an EEO case against CW 1. 6. The Coordinator sexually harassed her on September 21, 2018, by showing her vintage Playgirl calendar with pornographic photographs, and on October 2, 2018, by questioning her about sexual rumors. 7. She volunteered to work overtime on the January 21, 2019 holiday, but was denied. 8. On or about February 6, 2019, SDO 2 (male, not religious) instructed her to perform work outside of her bid, while CW 2 worked in her bid. 9. On or about February 6, 2019, SDO 1 approached her and got in her face in a threatening manner three or four times. When Complainant is supervised by an SDO, they are her first line supervisor, and when an MDO is supervising her area, they are her second line supervisor. Following an investigation, the Agency gave Complainant a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). She requested a FAD without a hearing. The Agency then found no discrimination. Complainant did not submit an EEO investigative affidavit, despite being asked to do so. In the FAD, for various reasons, the Agency found Complainant did establish prima facie cases of sex, religion, reprisal, disability, disparate treatment, and non-sexual and sexual harassment. The Agency also found that Complainant did not prove her allegations occurred, as alleged. Specifically, on issue 3, it noted Complainant’s allegation that CW 1, in front of coworkers, said Complainant walked around like a streetwalker, was a crazy trick, and got special details in exchange for sexual favors. 2020000588 3 The FAD referred to an Initial Management Inquiry Process (IMIP) report that both credited CW 1 and 2’s denials and found Complainant’s interview demeanor did not lend credibility to her claims. On issue 4, the Agency cited MDO 2’s statement that there was no overtime in the rewrap cage to assign Complainant, but she advised her overtime was available on the secondary floor unit and she refused. It cited SDO 1’s statement corroborating this. MDO 1 transferred away from Complainant’s facility prior to the start of the EEO investigation and the EEO investigator not ask her for a statement. On issue 5, the Agency referenced the Coordinator’s “No” response to a multipart EEO investigatory question that asked in part if issue 5 occurred. We add that SDO 1 included with her investigatory statement her reply to the EEO counselor’s inquiry, explicitly denying she intimidated Complainant about not filing against CW 1. She explained that in a conversation response to Complainant repeatedly telling stories that happened five years ago between her and CW 1, she advised her to be strong and not hang onto things that happened then. On issue 6, the Agency recounted Complainant’s allegation that the Coordinator picked up a vintage Playgirl calendar, shoved sexually explicit images in her face, said “What, you don’t like dick?” when she protested, and the Coordinator also said she was hot and bothered and could not wait to be with her husband. The Agency favorably quoted from the Coordinator’s statements as follows. When she walked into the rewrap cage the pictures of the naked men were already open and exposed and Complainant showed them to her, they were in rewrap because they came out of package or envelope, she did not ask Complainant if she liked “dick” nor cared, and never said anything to her about being hot and bothered and wanting be with her husband, nor would she. Nor did she question Complainant on sexual rumors. Instead, Complainant asked her for advice on how to stop the rumors, and she gave identified advice without questioning her. On issue 7, Complainant did not identify who denied her holiday work for January 21, 2019. The Agency recounted that MDO 2 stated she was not involved in denying Complainant this holiday work, and SDO 1 stated she had no knowledge of this. Regarding issue 8, Complainant contended that on February 6, 2019, SDO 2 instructed her to hang sacks, which is outside of her bid, while CW 2 worked in her bid. The Agency cited SD0 2’s statement that he was not involved in this incident. For issue 9, the EEO investigator asked SDO 1, SDO 2, and MDO 2 about “Complainant’s Manager” threateningly getting into her face three or four times on or about February 6, 2019. The Agency recited their responses that they had no knowledge of this. The instant appeal followed. On appeal, the parties make no comment. ANALYSIS AND FINDINGS To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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 2020000588 4 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., OLC Control No. EEOC-CVG-1994-5 (Mar. 8, 1994). To prevail on her disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with for this claim, however, since the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation was a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Incidents 3, 5, 6 and 9 All these incidents, if proven to have occurred as alleged, are abusive, offensive and/or intimidating. On incident 3, in her IMIP statement CW 1 admitted she once told Complainant she was “trolling this building all night like a hooker”, but she never told her “anything since then”. When asked what she meant by the remark, CW 1 replied “walking around bouncing her boobs…, not doing her work, she has a reputation….” She asserted Complainant frequently does not show up for work, and only did 2% of her work. The hooker comment was hurtful, uncalled for, and highly offensive. But CW 1’s version of what occurred is less severe than Complainant’s contention that “All the times [sic.]… [CW 1] would make a huge scene and call me a streetwalker[,] hooker[,] a crazy trick.. [sic.] Over and over on [M]ay 25, 2018..[sic.]” Complainant also contended CW 2 angrily called her “crybaby[,] crybaby[,] crybaby”. CW 2 replied in her IMIP statement that Complainant rolled her eyes at her when she was talking to CW 1, CW 2 reacted by saying “when people are talking, they aren’t talking about you, you’re paranoid”, that Complainant went crying to SDO 3 (male), and she told her she was “being a crybaby”. Like CW 1, CW 2’s statement indicates Complainant exaggerated what was said. On incident 6, a witness who was working in rewrap stated the Playgirl item was in Complainant’s cart and he briefly observed the Coordinator pick it up and thumb through the pictures while Complainant watched and appeared uncomfortable. While this would be inappropriate in the workplace, this is nothing like Complainant’s accusation that the Coordinator shoved the pictures in her face, questioned if she “liked dick” when she protested, and said she was now hot and bothered and could not wait to be with her husband. 2020000588 5 Taken at face value, the statement of this witness indicates Complainant exaggerated what occurred - this time to the point of misrepresentation. On incident 9, SDO 1 denied knowledge of someone in a confrontation getting into Complainant’s face three to four times, and there are no witnesses corroborating this occurred. Complainant did not submit an EEO investigative affidavit. In the face of denials regarding Complainant’s version of events, we find they did not occur or occur as alleged. While CW 1 telling Complainant once she “trolling this building all night like a hooker” is abusive, and the Coordinator once briefly thumbing through graphic Playgirl images in sight of Complainant is inappropriate, these things are not sufficiently severe or pervasive to constitute harassment violative of Title VII or the Rehabilitation Act. Incidents 4, 7, 8 Regarding issue 4, in his IMIP statement the Lead Clerk wrote he was not authorized to assign Complainant overtime work, and SDO 1 and MDO 2 advised him they would handle her overtime because she only comes to work once or twice a week. CW 2 wrote in her IMIP statement that when rewrap was backed up, for six months she worked overtime there starting in October 2018, from 2 AM to 4 AM, but then was not allowed to work there anymore. SDO 1 stated CW 2’s overtime was keying on parcel sorting machine stations 3 or 4. A Union Steward related in her IMIP statement that SDO 1 stated Complainant was not getting overtime because she does not come to work. In his IMIP statement the Mail Flow Controller wrote he trained Complainant to work in the Control Room, and she very frequently did not come to work. Two IMIP report investigators wrote that in his oral interview the Mail Flow Controller stated a supervisor told him to train Complainant for the Control Room where overtime was available to give her a chance, her first scheduled day there was the Christmas December 25, 2018 holiday, but she “called off” and did not report. In her IMIP statement CW 3 stated that because she and Complainant worked on different tours, she had no information on Complainant’s claim she was denied over time. To prove discrimination, Complainant must show that she was denied overtime based on her race, sex, religion, disability, or reprisal for prior EEO activity. Based on the above, we find that overtime was available in the rewrap cage. Because all the comparative employees who got or allegedly got overtime in the rewrap cage were female, and three of four of them were white, its unlikely Complainant’s denial was based on sex and race. The record does not show that MDO 1, MDO 2, and SDO 1 were aware of Complainant’s religion, and SDO 1 and MDO 2 denied they were aware. Based on the statements of the Lead Clerk and the Union Steward, we find the actual reason management denied giving Complainant overtime in the rewrap room was because her attendance was very unreliable, not discrimination or reprisal. Complainant submitted medical documentation by her Veteran Affairs Psychiatrist indicating she was out of work for mental health medical reasons for about a month in June and July 2018, and from February 12, 2019 - March 16, 2019. Hence, Complainant was not available for overtime during these periods. Witnesses indicate that when Complainant was coming to work, she did so sporadically. 2020000588 6 The medical documentation in the record does not show that the reason Complainant’s attendance was so sporadic when she was coming to work was because of her disabilities. Because of this, we find Complainant has not shown she was denied overtime based on her disabilities. On issue 7, Complainant did not identify who denied her holiday work for January 21, 2019, and SDO 1 and MDO 2 stated they had no knowledge of this. The burden is on Complainant to prove discrimination, and this sparse evidence does not support finding of discrimination. Issue 8 is SDO 2 instructing Complainant on or about February 6, 2019, to hang sacks, a task outside her bid, while CW 2 worked in her rewrap cage bid. In her February 11, 2019 IMIP statement, CW 2 wrote that last week Complainant was pulled out of her bid job to hang sacks while she remained in the cage, followed by the complete sentence “So [SDO 1] told me I wasn’t working in the cage anymore.” Based on this sparse evidence, Complainant has not proven discrimination regarding issue 8. CONCLUSION The FAD finding of no discrimination was established 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 2020000588 7 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. 2020000588 8 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 July 15, 2021 Date