[Redacted], Lilian C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 24, 2021Appeal No. 2020000765 (E.E.O.C. Mar. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lilian C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000765 Hearing No. 420-2019-00126X Agency No. 1G-321-0042-18 DECISION On November 6, 2019, 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 September 5, 2019, 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. ISSUE PRESENTED Whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not subjected to discriminatory harassment/hostile work environment based on retaliation (prior EEO activity) as evidenced by the five incidents that form the basis of her complaint. 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. 2020000765 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency’s Pensacola Processing and Distribution Center (P&DC) in Pensacola, Florida. Complainant has since become a career full time General Expeditor, P07/0 as of July 21, 2018. On June 20, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. on March 7, 2018, Complainant’s coworker (C1) yelled at Complainant, pushed empty containers into each other, and management took no action; 2. on March 9, 2018, Complainant was given an Investigative Interview and told to clock out of work; 3. on March 31, 2018, Complainant received notification that her most recent bid was improperly posted and therefore Complainant’s bid could not be processed and she could not be placed into the bid 2 position; 4. on April 11, 2018, Complainant’s coworker (C2) continued to come behind Complainant’s work station harassing Complainant and made an inappropriate sexual comment; and 5. on May 29, 2018, Complainant was given an Investigative Interview. 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 Agency filed a motion for decision without a hearing on August 1, 2019. In her response dated August 16, 2010, Complainant asserted that there are multiple credibility and material disputes; and that summary judgment was not appropriate. The AJ issued a decision without a hearing on August 28, 2019. In her decision, the AJ listed the following undisputed material facts: Regarding Incident 1, Complainant alleged that she asked C1 if C1 could move C1’s empty containers. Instead, C1 began pushing the empty containers into other empty containers and yelled back at Complainant. Complainant stated that she was not physically harmed. Complainant stated that she notified a Manager, Distribution Operations (MDO1) of the incident. Complainant stated that MDO1 contacted a Postal Inspector to look into the matter. Complainant indicated that the Postal Inspector determined that the alleged incident was a disagreement between two employees. 2020000765 3 Complainant stated that MDO1 spoke to C1 about the incident. Complainant testified that she believed her prior EEO activity was a factor in this matter because it was not the first time she had asked her manager to look into a complaint. MDO1, Complainant’s Manager at the time of the incidents alleged in the instant complainant, stated that he had no knowledge of Complainant’s prior EEO activity and only became aware of Complainant’s current EEO activity in April 2018. MDO1 stated that he only began employment in Pensacola in December 2017. MDO1 confirmed Complainant’s statements that he contacted the Postal Inspector after Complainant notified MDO1 of Incident 1. Regarding Incident 2, Complainant alleged reprisal when she was given a March 9, 2018 Investigative Interview and told to clock out of work. Complainant testified that her prior EEO activity was a factor because she believed that MDO1 had knowledge of her prior activity. MDO1 stated that he conducted the interview after Complainant complained about C1 yelling at her and pushing empty containers into each other. MDO1 stated that Complainant became difficult during that interview, so MDO1 instructed Complainant to clock out. MDO1 stated that, at that point, Complainant had already worked her full tour, so she lost no time off the clock. MDO1 indicated that C1 was also instructed to clock out at the same time as Complainant. Regarding Incident 3, Complainant stated that she received written notification in the form of a Postal Service (PS) Form 50 that her most recent bid had been improperly posted so it could not be processed. Complainant stated that the Form 50 should not have been placed in her personnel file. Complainant named no comparators treated differently. A second Manager, Distribution Operations (MDO2) stated that he was not Complainant’s direct manager or supervisor. MDO2 stated that he was aware of Complainant’s prior EEO filings where he was named, but MDO2 asserted that the EEO filings had nothing to do with the improper posting notification. MDO2 stated that Complainant was not the only one who received notice that their bids could not be processed due to improper posting. MDO2 stated that two other employees also received the notice. MDO2 stated that neither of those two employees had filed any prior EEO complaints. A Supervisor of Human Resources (SHR), explained that a Form 50 would be generated because Complainant was placed in and out of Leave Without Official Pay (LWOP) status. Regarding Incident 4, Complainant alleged that C2 went behind Complainant’s work station and made inappropriate sexual remarks. Complainant also stated that she responded with inappropriate sexual remarks. Complainant stated that she believes her prior EEO activity was a factor because of her assertion that management failed to provide her a safe work environment again. MDO1 stated that he gave Complainant and C2 a direct order not to go into each other’s work sections. MDO1 also stated that he interviewed seven employees and retrieved statements from them. MDO1 asserted that the statements supported that both employees had used inappropriate sexual language towards each other. 2020000765 4 Two other Managers, Distribution Operations (MDO3 and MDO4) provided supporting testimony stating that Complainant informed them of the alleged incident. MDO4 also stated that clerks, like Complainant and C2, are required to work in the same operation. Regarding Incident 5, Complainant alleged that she was required to participate in an Investigative Interview on May 29, 2018, by MDO1, and Complainant did not know why. Complainant presented no comparators who were treated differently. Complainant asserted that her prior EEO activity was a factor because she believes that MDO1 had knowledge that this type of harassment had happened to her once before based on what Complainant told MDO1. MDO1 stated that the Investigative Interview was for an April 11, 2018, incident in the bathroom with a third coworker (C3), where Complainant was alleged to have raised her voice and threatened C3. The AJ found that Complainant had failed to establish a prima facie case of reprisal because Complainant could not show that MDO1 knew of her prior EEO activity. The AJ noted that MDO1 was not Complainant’s supervisor or manager at the time, or a witness, or a management official, in any of the prior complaints. The AJ found that the Agency had articulated legitimate non-discriminatory reasons for the March 9, 2018 interview and the request for Complainant to clock out. Hence, the AJ stated, the evidence clearly showed this request was based on Complainant’s actions, and not her prior EEO activity from four years prior or any other improper motivation. With respect to Incident 3, the AJ found that the Agency had a legitimate non-discriminatory reason why Complainant would receive a Form 50 notification. Furthermore, the AJ noted, two other employees who had no prior EEO activity also received notifications. The AJ noted that the evidence showed that Complainant’s receipt of the Form 50 was based on issues other than her prior EEO activity or any other improper motivation. With respect to Incident 4, the AJ found that the Agency had a legitimate, non-discriminatory reason to give both Complainant and C2 a direct order not to go into each other’s work sections. The evidence showed, the AJ observed, that Complainant and C2 had both acted inappropriately. The AJ stated that the order was based on discourteous inappropriate conduct by both employees. The AJ granted the Agency’s Motion for Summary Judgment because Complainant had failed, by a preponderance of the evidence, to establish a prima facie case of reprisal discrimination. Here, the AJ held, even assuming that Complainant could establish a prima facie case of reprisal discrimination, the Agency had articulated legitimate, nondiscriminatory reasons for its actions and Complainant had failed to show that the Agency’s reasons were a pretext for unlawful discriminatory harassment/hostile work environment. The Agency subsequently issued a final action adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 2020000765 5 CONTENTIONS ON APPEAL In her Appeal Brief, Complainant reiterates her allegations, arguing that the AJ weighed conflicting evidence to make her determination even though it was improper. Complainant argues that the AJ consistently weighed conflicting affidavits and determined that the Agency was right and Complainant was wrong, which, Complainant asserts, is improper and is a clear reflection of the AJ treating her ruling as a trial by affidavit. In doing so, Complainant argues, the AJ made countless credibility determinations which is improper as credibility determinations are to be made at a hearing on the merits. Further, Complainant argues, by making these determinations against Complainant and for the Agency based on allegedly mere “he said/she said†affidavits, the AJ failed to view the evidence presented in a light most favorable to Complainant. Complainant asserts that summary judgment was improper because both parties were relying on conflicting affidavits and the AJ made her ruling based on those conflicting affidavits. Complainant requests that the Commission reverse the Agency’s Final Action. The Agency did not submit an Appeal Brief. STANDARD OF REVIEW 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 . . .â€); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 lawâ€). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. 2020000765 6 The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact†is one that a reasonable judge could find in favor for 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 “material†fact has the potential to affect the outcome of a case. ANALYSIS AND FINDINGS AJ’s Issuance of a Decision Without a Hearing An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant raised several arguments on appeal which she claims shows that genuine issues of material fact exist that warrant a hearing. Complainant, among other things, repeatedly cites the fact that she had previously informed MDO1 of her prior EEO activity. She asserts that, for that reason, MDO1 allowed Complainant to be harassed in retaliation for that activity. The record indicates the EEO activity occurred in 2014, at least four years before the instant complaint was filed in 2018. In addition, Complainant merely asserted without evidence her belief that MDO1’s actions were in retaliation for her protected activity. After a careful review of the record, we find that there was no genuine issue of material fact or credibility so as to warrant a hearing in this case. Discriminatory Harassment Based on Retaliation The Commission has adopted the burden-shifting framework for analyzing claims of discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found. for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. She must demonstrate that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). 2020000765 7 Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden is again on Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, it is Complainant’s obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). Assuming Complainant had established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for the alleged management actions which Complainant failed to show was pretext for unlawful retaliation. Regarding Incident 1, MDO1 asserted, and Complainant admitted, that MDO1 had contacted a Postal Inspector when Complainant notified MDO1 of the alleged incident involving C1. Therefore, Complainant’s allegation that management took no action is uncorroborated by the evidence. Regarding Incident 2, MDO1 stated that Complainant was instructed to clock out because she became difficult during the investigative interview into the alleged incident involving C1. The record indicates that Complainant expressed her disagreement with MDO1 in an inappropriate manner during the investigative interview. Moreover, MDO1 stated that C1, like Complainant, was also instructed to clock out. Therefore, we find that Complainant has not shown that retaliation was the motivation. Regarding Incident 3, MDO2 stated, and record evidence indicated, that Complainant’s received notice that her bid could not be processed due to an improper posting. MDO2 stated that two other employees who had not previously engaged in EEO activity also received the similar notice. Therefore, Complainant’s contentions that MDO2’s action was motivated by retaliatory animus is uncorroborated by the evidence. Regarding Incident 4, MDO1 stated that he gave Complainant and C2 a direct order not to go into each other’s work sections. MDO1 also interviewed seven employees who provided statements that both Complainant and C2 had made inappropriate sexual remarks towards each other. Therefore, Complainant’s allegation that management took no action is uncorroborated by record evidence. Likewise, regarding Incident 5, MDO1 indicated that he conducted an investigative interview after Complainant allegedly raised her voice at, and threatened C3. Therefore, Complainant’s actions, not retaliation, motivated MDO1’s conduct of the investigative interview. Moreover, Complainant asserted her belief that her prior protected EEO activity was the reason without providing evidence or support for her belief that this action was connected to her EEO activity. 2020000765 8 We further find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, we conclude that Complainant’s claim of harassment similarly fails. With respect to Complainant’s contentions indicating that MDO1 did not provide her a safe environment in which to work, the Commission has stated that "employees may experience unprofessional, inappropriate, and disrespectful treatment;" that "civil rights statutes are not meant to be civility codes;†and that common workplace occurrences require evidence of abuse or offensiveness. See, e.g., Zada C. v. U.S. Postal Serv., EEOC Appeal No. 0120161460 (May 29, 2018). The instant complaint lacks such evidence that she was subjected to the alleged harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s final action adopting it. 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). 2020000765 9 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). 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. 2020000765 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 March 24, 2021 Date Copy with citationCopy as parenthetical citation