[Redacted], Mica B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 29, 2021Appeal No. 2021001012 (E.E.O.C. Sep. 29, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mica B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001012 Hearing No. 520-2019-00206X Agency No. 4B-100-0044-18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 24, 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 Supervisor of Customer Service, EAS 17, at the Agency’s Manhattanville Station in New York, NY. On May 25, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on sex (female) and reprisal for prior protected EEO activity when: 1. On February 5, 2018, Complainant was watched all morning and subjected to negative comments in front of employees; 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. 2021001012 2 2. On February 6, 2018, Complainant was watched all morning, subjected to inappropriate comments in front of the employees, threatened with discipline, and the Area Manager (M1), EAS 23, stated that Complainant was not going to win; 3. On February 7, 2018, Complainant was the only supervisor watched all morning; 4. On February 8, 2018, Complainant was yelled at in front of the employees, threatened to be charged Absent Without Leave (AWOL), and escorted out of the building in front of the employees by the Postal Police; and 5. On February 9, 2018, Complainant was accused of making a threat, escorted out of the building in front of the employees by the Postal Police, and placed on Administrative Leave. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. The AJ first found that Complainant was unable to establish a hostile work environment claim based on her sex. Regarding Claims 1 through 3, the AJ found that it was reasonable for M1 to observe Complainant, since it was M1’s first week as Area Manager at the facility, and that regardless of M1’s tone, manner, or type of instructions, M1’s feedback was not about Complainant’s sex and did not rise to a hostile work environment. Therefore, the AJ found that even assuming Complainant’s version of events happened as alleged, no inference of sex-based harassment could be made. Regarding Claims 4 and 5, the AJ found that whether Complainant made threats to M1 was a factual dispute, but he also noted that the Agency had investigated the incident between M1 and Complainant. The AJ concluded that the record showed the Agency investigators at the time found no wrongdoing on the part of either Complainant or M1. The AJ further noted that there was no record evidence to suggest that M1’s actions were because of Complainant’s sex or that “a reasonable inference of an intent to harass based on sex [could] be made,” regardless of the factual dispute. In sum, the AJ concluded that none of the events in Complainant’s claims support the allegation of a hostile work environment based on Complainant’s sex. Regarding Complainant’s allegation of reprisal based on prior EEO activity, the AJ found that Complainant was unable to show that M1 or Complainant’s immediate supervisor, Acting Manager (M2), EAS 21, had any awareness of Complainant’s prior EEO activity. The AJ concluded that M1 and M2 had affirmed that they were unaware of Complainant’s prior EEO activity and that Complainant had not offered any evidence to contradict them. Therefore, the AJ found that Complainant was unable to establish a prima facie case of retaliation. 2021001012 3 On appeal, Complainant argues that M1 targeted only Complainant for observation and questioning and did not cross the work floor to observe any of her male coworkers at the facility, that M1’s tone was “harsh and rude,” and that Complainant had no reason to threaten M1. Complainant also asserts that the District Manager (DM), who was aware of Complainant’s prior EEO activity, had sent M1 to the facility specifically to target Complainant in retaliation for such activity. Complainant contends that DM has sent “Manager after Manager” to the facility to target her. Complainant also claims on appeal that she had conversations about her prior EEO activity with M2 (who worked directly under M1) before February 2018. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when she or he 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 factfinder 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 implementing 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 AJ’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). For the reasons discussed below, we find that the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment Although the AJ analyzed all of Complainants claims under a hostile work environment framework, we find that Claims 4 and 5 should be analyzed under a disparate treatment analysis (in addition to a hostile work environment analysis), as they involve Complainant’s placement on administrative leave. The record shows that the Agency’s legitimate, nondiscriminatory reasons for placing Complainant on administrative leave was so it could conduct an investigation into M1’s allegation that Complainant threatened M1 by saying, “Oh so [DM] sent you here to mess with me! She sent you here to get me out of here! But guess what, you will be the one leaving in a body bag!” Assuming Complainant established a prima facie case of discrimination or reprisal based on the discrete acts in Claims 4 and 5, we find that the Agency provided a legitimate, nondiscriminatory reason for its actions, namely that it was taking the necessary precautions and making a full investigation into M1’s allegation that Complainant threatened her. Whether Complainant actually did so is not material to the Agency’s reason, because the investigation was conducted precisely to determine whether the threat had occurred as alleged. 2021001012 4 We also find that Complainant failed to provide persuasive evidence of pretext or otherwise establish that discriminatory animus played a role in this matter.2 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor on these claims. Harassment To establish a claim of harassment, a 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 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). Therefore, to prove her harassment claims, 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, her sex and prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Under the standards set forth in Harris v. Forklift Systems, Inc., Complainant’s claim of a hostile work environment must fail with regard to Claims 4 and 5. 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 these actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). 2 We note that, in addressing an AJ’s issuance of a decision without a hearing, a complainant’s opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. Here, Complainant’s allegations that DM sent M1 to target Complainant because of Complainant’s prior EEO activity, or that M1 harassed her based on her sex, are bare assertions without support in the record. 2021001012 5 As to Claims 1, 2, and 3, we find that the AJ properly issued summary judgment. Construing the evidence in the light most favorable to Complainant, we agree with the AJ that Complainant has not shown she was subjected to a hostile work environment. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Moreover, the claims occurred over the course of only one week. Even assuming, arguendo, that these incidents occurred as alleged, we find that taken together, they do not rise to the level of severe or pervasive conduct to constitute a legally hostile work environment. As the AJ noted and the record reflects, February 5, 2018, the date on which Complainant’s claims begin, was M1’s first day at the facility and her first time meeting the supervisors who worked there, including Complainant. This is consistent with M1 making observations and asking questions in order to get acclimated. Even if the alleged conduct did rise to the level of severe or pervasive conduct, like the AJ, we find that Complainant has failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. See Celotex, 477 U.S. at 324; supra footnote 2. For these reasons, we find no basis to disturb the AJ’s summary judgment decision finding that Complainant was not subjected to discrimination as alleged. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, including the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision finding no discrimination. 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. 2021001012 6 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). 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. 2021001012 7 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 September 29, 2021 Date Copy with citationCopy as parenthetical citation