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

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020002254 (E.E.O.C. Jun. 3, 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 (Northeast Area), Agency. Appeal No. 2020002254 Hearing No. 520-2019-00605X Agency No. 4B-070-0009-19 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 December 11, 2019, final decision 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS- 18, at the Port Reading Post Office in Port Reading, New Jersey. On November 28, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), age (over 40), and in reprisal for prior protected EEO activity 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. 2020002254 2 1. On an ongoing basis her career growth had been hindered within the Northern New Jersey District; 2. On June 8, 2018, the Acting Manager Post Office Operations (A/MPOO) called her office several times to have her correct a clock ring error; 3. On June 20, 2018, she was placed on an exception list regarding incomplete USERRA training; 4. On dates to be specified, the A/MPOO required her to submit proof of her PS Form 3971 each time she took leave;2 5. Beginning September 22, 2018, the A/MPOO required her to email him when she started and completed work each day; 6. On September 11 and 17, 2018, it was insinuated that she had misappropriated funds and was threatened with a letter of demand; and 7. On February 8, 2019, a contract truck driver sexually harassed her when he brushed against the front of her body, and her managers did not take appropriate action after she notified them of the incident even after the truck driver attempted to intimidate her on March 13, 2019, by entering her building. 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 requested a hearing. On November 6, 2019, the AJ issued an Acknowledgment Order and Notice of Pre-Hearing Conference setting an initial pre-hearing phone conference on November 19, 2019. The AJ advised that failure to follow this Order or other orders of the AJ may result in sanctions pursuant to 29 C.F.R. § 1614.109(f)(3). The AJ noted Complainant was served at her email address on file with all correspondence related to the initial conference, and the Commission received no indication that the emails were not received by Complainant. Complainant failed to appear for the conference and the AJ noted she did not contact him or Agency counsel before the conference to request a postponement. As a result, on November 19, 2019, the AJ issued an Order to Show Cause to Complainant instructing her to show good cause explaining why she missed the initial conference by November 22, 2019. The AJ noted if good cause is shown, he would reschedule the conference. He also informed that if good cause is not shown or Complainant fails to respond to this Order, the case will be dismissed based on Complainant’s failure to comply with Commission orders and failure to prosecute the case. Further, Complainant was advised that failure to follow Commission orders may result in sanctions up to and including the dismissal of the complaint. Complainant did not submit a response to the AJ’s Order, and consequently, on November 25, 2019, the AJ issued an Order of Dismissal and dismissed Complainant’s hearing request and remanded the complaint to the Agency for issuance of a final decision pursuant to 29 C.F.R § 1614.110(b). 2 In her affidavit, Complainant stated that on June 4, 2018, June 5, 2018, June 8, 2018, September 20, 2018, and September 21, 2018, the A/MPOO required her to submit proof of her PS Form 3971 each time she took leave. 2020002254 3 The Agency subsequently issued a final decision on December 11, 2019. In its decision, the Agency noted that Complainant’s initial contact with the EEO Office occurred on October 11, 2018. The Agency stated that the non-selections raised in claim 1 were all untimely raised with an EEO Counselor. The Agency noted that with the exception of the non-selections referenced in claim 1, none of the claims involve discrete actions. Thus, the Agency stated none of Complainant’s claims would be subject to a disparate treatment analysis. The Agency proceeded to analyze Complainant’s hostile work environment claim. The Agency’s final decision concluded that Complainant failed to prove that the Agency subjected her to a hostile work environment as alleged. On appeal, Complainant reiterated that she requested a hearing before an AJ and not a decision from the Agency. Complainant stated she “never received any notification at all. This is just another form of their sneaky ways.” 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 (EEO MD-110), at Chap. 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”). As an initial matter, the Commission finds that we need not address whether the sanction imposed by the AJ was appropriate. Even if the sanction was too harsh, which we do not address in this decision, we find that such a sanction does not change the outcome in this case because we find that even if the sanction had not been imposed, a decision without a hearing finding no discrimination was appropriate. Hostile Work Environment - Nonsexual Harassment To establish a claim of hostile environment 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 an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2020002254 4 In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, because of her race, color, sex, age, or in reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Regarding claim 1, Complainant alleged that on an ongoing basis her career growth had been hindered within the Northern New Jersey District. As part of that claim, Complainant referenced some nonselections. The Agency dismissed the nonselections portion of this claim for untimely EEO Counselor contact. Complainant does not dispute the determination that her EEO Counselor contact was untimely for the nonselections raised in Claim 1 (occurring between March 25, 2015 and April 23, 2018) and thus, we do not address those nonselections in this decision. Complainant stated she believed her race was a factor with regard to her career growth because the Agency “is a microcosmic of society and society doesn’t care about Blacks, especially dark complexed Black women. Racist ideology is their pathology.” Complainant stated as an educated female in an undereducated male dominated industry, education is seen as a threat. Complainant claimed that “once it[’]s determine[d] that [she] will not sit down and shut up or play nice, then I become the enemy” and the organization becomes hostile and discriminatory. Complainant claimed that due to her age she cannot be manipulated, and this shows resistance to upper management. Complainant averred that the culture of the Agency is one of “revenge and racist toxicity.” She claimed it was taboo to file an EEO and win, then expect to have a career. A/MPOO stated that Complainant never applied for a detail opportunity from him. He stated that Complainant applied for a Postmaster position in Woodbridge, New Jersey, but she withdrew her application. He noted she sent him an email on July 26, 2018, stating she was withdrawing her name as an applicant. He indicated that her race, sex, age, color, and EEO activity were not factors regarding career opportunities. Regarding claim 2, Complainant claimed that the A/MPOO called her office several times to have her correct a clock ring error. Complainant stated race is always a factor to racists. She stated color is always a factor to racists and noted they are the kind of racists that makes exemptions for “special Blacks,” for example athletes and musicians. She claimed they also make compensation for lighter complexion Blacks because they are more tolerable. Complainant stated sex is a factor because the A/MPOO is a bully due to his “lambaste imposed upon me” and said it was “unimaginable for a male to tolerate such behavior.” Complainant stated her age was a factor because she was an educated Black woman over 40 and had learned her job through studies and in the classroom testing. Further, Complainant stated the culture of the organization is one of “revenge and racist toxicity.” 2020002254 5 A/MPOO stated that he managed 24 Postmasters and anytime a clock ring is not corrected by a certain time he follows up to sure corrections are made. He explained this is done to ensure that everyone is paid correctly and in a timely manner. Regarding claim 3, Complainant claimed that on June 20, 2018, she was placed on an exception list regarding incomplete USERRA training. Complainant stated that the Manager, Learning Development & Diversity (Manager) could not find her completed USERRA Training in her training program. Complainant stated she finally printed the completed forms and faxed the pages to the Manager. Complainant stated race is always an issue and noted if it were not, she would not be going through this process a third time. Regarding color, she referred to her prior statement in reference to claim 2 that color is always a factor to a racist and that exemptions are made for “special Blacks.” Regarding sex and age Complainant replied “N/A.” Regarding reprisal, Complainant referred to her answer in reference to claim 2 when she cited the culture of the organization as one of “revenge and racist toxicity.” The Manager, Learning Development & Diversity explained that exception reports were generated from a national database that did not use race, color, sex, age, or EEO activity as criteria. The Manager stated the USERRA report was generated from Learning Development & Diversity using the LMS database. She stated an employee’s name would appear on the report automatically if training was not completed by the time the report was generated. The record reveals that on June 20, 2018, Complainant brought to the Manager’s attention that she had completed the USERRA training and as a result the Manager requested Complainant’s training record be reflected to show completion of that training. The Manager noted that Complainant was not currently on the exception list. Regarding claim 4, Complainant claimed that on June 4, 5, 8, 2018 and September 20-21, 2018, the A/MPOO required her to submit proof of her PS Form 3971 each time she took leave. Complainant reiterated her rationale for believing her race, color, sex, age, and prior EEO activity were factors as set forth previously in the discussion of claim 2. The A/MPOO stated that he was the management official responsible for requiring Complainant to submit proof of her PS 3971 each time she took leave. He stated that since Postmasters self- approve their leave up to 40 hours, he needed to be notified when the Postmasters were out and who was covering in their absence. He also stated he needed to be informed to make sure their leave was being entered into the system. The A/MPOO noted it was common practice throughout the District that Postmasters and Managers were to send their leave slips to the administrative assistant who in turn let him know and he would then sign off on the forms. The A/MPOO said he never deleted any of Complainant’s clock rings. The A/MPOO stated that all Postmasters were required to submit their 3971s to his office. Regarding claim 5, Complainant alleged that beginning September 11, 2018, the A/MPOO required her to email him when she started and completed work each day. 2020002254 6 Complainant reiterated her rationale for claiming race, color, sex, age, and EEO activity were factors set forth in the discussion of claim 2. The A/MPOO stated he was the management official responsible for requiring Complainant to email him when she started and completed work each day. He stated that he did so because of the numerous times he called her office and she was not there working and would not get back to him for hours at a time. He noted that Person 1, Person 2, and Person 3 were not required to email him when they started and completed work each day. He stated they were treated differently than Complainant because he never had issues calling their offices and them not being available. Further, he states those employees notified him when they were going to be away from their offices. Regarding claim 6, Complainant claimed that on September 11 and 17, 2018, it was insinuated that she had misappropriated funds and was threatened with a letter of caution. Complainant reiterated her rationale for believing her race, color, sex, age, and EEO activity were factors set forth above in her discussion of claim 2. The A/MPOO stated that he did not recall insinuating that Complainant had misappropriated funds. He explained that he told her she did not follow proper procedures and instructed her to contact the finance manager for the proper procedure to pay the contractor. He stated that Complainant did not follow the proper procedure and would not contact the finance manager as she was instructed to do in order to pay the contractor. The A/MPOO did not remember threating to give Complainant a Letter of Demand; however, he did state that if she did not pay the contractor, she could become liable. He noted Complainant was not given a Letter of Demand for the outstanding accounts. We find that Complainant has not shown that she was subjected to a hostile work environment. The Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency’s actions. Regarding claim 3, we note that even if Complainant was initially placed on the exception list in error, there is no indication that her initial placement on the list was based on discriminatory or retaliatory animus. The record reflects that the remaining alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Hostile Work Environment - Sexual Harassment To establish a claim of sexual harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome conduct related to his sex, including sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, 2020002254 7 hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer, in other words, did the agency know or have reason to know of the sexual harassment and fail to take prompt remedial action. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Complainant contended that a contract truck driver subjected her to sexual harassment based on the two incidents alleged in claim 7. Complainant stated that on February 8, 2019, the truck driver entered her building with additional equipment, and she asked him why he was storing more equipment. According to Complainant, he walked towards her and raised his voice. She stated she became afraid and instructed him to take the mail and get out. She claimed that as he was leaving, he brushed his body against the front of her body and brushed the “post-con”3 against the front of her body. She stated she reported the incident via email to A/MPOO and Person Y, the Manager who was acting for A/MPOO, on that day. Complainant also stated that on March 13, 2019, the truck driver entered her building from the back of the building and walked directly through, exiting through the dutch doors into the customer’s lobby then the front door. She stated there was no clear reason for him to enter her building from the rear and walk directly through without stopping. Complainant stated she felt there was no need to contact her manager in regard to the March 13, 2019 incident because he already knew what the truck driver was doing and condoned it by not doing anything once she reported the initial sexual harassment that occurred on February 8th. Complainant stated that the truck driver has demonstrated illicit behavior on Agency property and she addressed it, and that ever since that incident, he has been confrontational and intimidating. She alleged race, sex, color, age, and EEO activity were factors for the same stated reasons listed in claim 2. The A/MPOO stated that the truck driver initially contacted him around December 20, 2018, with concerns about the way Complainant was treating him, saying she was constantly harassing him and using vulgar language. The A/MPOO reached out to Complainant for her side of the story and she responded on December 21, 2018, with a completely different version. The A/MPOO noted that on February 7, 2019, he reached out to Complainant about the number of hours and she indicated, “also, [the truck driver] brushed against me and brushed the post-con against me all because I asked him a question pertaining to storing equipment in my office, he raised his voice I instructed him to take the mail and get out.” The A/MPOO stated he received an email from the truck driver regarding the matter on February 8th stating Complainant became more aggressive than usual, shouting, and very agitated. 3 The record does not indicate what a “post-con” is. 2020002254 8 The A/MPOO stated he sent an email to the HR Manager requesting an IMIP (Initial Management Inquiry Process) to be conducted in regard to the situation between Complainant and the truck driver.4 The A/MPOO noted Complainant never stated that she was sexually harassed or that the truck driver brushed against the front of her body on February 8th. He stated he was not aware of the incident on March 13th. The record contains a February 13, 2019 email from the A/MPOO to the HR Manager stating the situation between Complainant and the truck driver has escalated and there are conflicting stories. The A/MPOO stated he believed they needed to do an IMIP. In a February 14, 2019 email from the HR Manager, the HR Manager requested an IMIP. The record also contains a March 1, 2019 email from the A/MPOO to Complainant noting he contacted HR regarding the incident with the truck driver and requested an IMIP. Person Y explained he was filling in for the A/MPOO from February 6-8, 2019 and did not recall Complainant telling him the truck driver sexually harassed her during that time. He stated Complainant initially sent the email to the A/MPOO informing him that the truck driver brushed up against her. Person Y stated he responded to Complainant that as the Postmaster of the office she is authorized to take whatever action is necessary to take care of the matter. Person Y stated he was not aware of Complainant’s allegation of being sexually harassing during the three days that he was filling in for the A/MPOO. Assuming the two incidents occurred as alleged by Complainant, we find the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. We find that the record, taking everything asserted by Complainant as true, fails to show a severity necessary to constitute a hostile work environment. Complainant’s sexual harassment claim consists of two incidents. A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). For purposes of this decision, the Commission assumes the incidents occurred as alleged by Complainant. However, we find that the record shows that the incidents were not severe, physically threatening, or an unreasonable interference with Complainant’s work performance. The Commission finds that the isolated nature of the conduct at issue was insufficiently severe or pervasive to establish sexual harassment. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 4 The investigator noted that the IMIP in regard to the matter between Complainant and the truck driver had not been completed and the final report would be submitted upon completion. 2020002254 9 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). 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). 2020002254 10 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 June 3, 2021 Date