[Redacted], Nenita S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jan 14, 2021

Appeal No. 2021000179 (E.E.O.C. Jan. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nenita S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021000179 Agency No. 4F956011220 DECISION Complainant timely appealed2 with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's September 21, 2020 dismissal of her complaint of unlawful 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 as a Postal Support Employee ("PSE") Clerk at the Agency’s Cedar Station in Fresno, California. On August 28, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against her 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. 2 We note that a portion of Complainant’s documents uploaded in support of her appeal, which appears to consist of photographs of six handwritten pages are mostly illegible, 2021000179 2 1. On June 29, 2020, she was subjected to a hostile work environment/harassment based on her race (White) and sex (female) when the Postmaster called her into the office and accused her of sending sexual text messages to another employee. 2. On September 12, 2020, she was subjected to a hostile work environment/harassment based on her race, sex, color, national origin (Hispanic/Latino), and disability when she was informed that she needed to submit medical documentation for her absence the day before. 3 The Agency dismissed the matter in accordance with 29 C.F.R. §1614.107(a)(1), for failure to state a claim. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Claim 1 Complaints where the alleged discriminatory act is another employee accusing the complainant of an EEO violation, without further action, such as discipline, fail to state a claim, because they do not allege a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz, Sawyer v. United States Postal Serv., EEOC Appeal No. 0120092483 (Oct. 22, 2009). In general, the Commission has held that merely conducting an investigation into purported improper or illegal conduct does not cause any injury without more, such as resulting disciplinary action. Heard v. Dep’t of Justice, EEOC Appeal No. 0120092680 (Aug. 27, 2009), Shelly v. Dep’t of the Treas., EEOC Appeal No. 01996655 (Oct. 27, 2000). It has also applied this rule to the initiation of an internal investigation. Martin v. Dep’t of Justice, EEOC Appeal No. 01A32934 (Sept. 17, 2003). 3 Complainant raised the allegation in Claim 2 as a new EEO complaint on September 13, 2020, but the Agency, exercising its discretion under 29 C.F.R. §1614.106(d), included it as an amendment to the Formal Complaint for Claim 1. 2021000179 3 Even in instances where the internal investigation finds a sexual harassment accusation against the complainant to be false, neither the allegation nor the investigation are sufficient to state a claim, as neither constitutes an adverse action. See Ricardo K. v. United States Postal Serv., EEOC Appeal No. 0120161857 (Aug. 12, 2016). The Postmaster’s action of calling a meeting with Complainant to inform her that another employee alleged that Complainant sent them sexual messages fails to state a claim. Upon review of the FAD and record, it appears Complainant intended for Claim 1 to also address the Postmaster’s refusal to provide any evidence to support the sexual text message allegation. By Complainant’s account, the Agency not only accused her of sending the alleged messages, but during the June 29, 2020 meeting, the Postmaster refused to call the employee who allegedly received the messages into the office to discuss the allegation, show Complainant the alleged messages on the employee’s phone, or disclose the phone number from which the alleged messages originated. The Agency states, and Complainant does not dispute, that during the time frame for this complaint, HR was conducting the internal investigation of the sexual text message allegation. Thus, the Postmaster denied Complainant’s requests within the context of an open HR investigation, and Agency policy with respect to such investigations. Under these circumstances, we find the accusations and resulting investigation into Complainant’s purported conduct is not, by themselves, sufficient to state a claim, and Complainant has not identified a related adverse action. As such, Claim 1 fails to state a claim. Claim 2 In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), isolated incidents such as the one that form the basis of claim 2, unless extremely serious, will not amount to discriminatory changes in the “terms and conditions of employment.” Here, Complainant fails to state a viable claim of a discriminatory hostile work environment. The action alleged, without more, is simply insufficiently severe or pervasive to state a valid claim. Assuming, for the sake of argument, that we did not already establish that the allegation in Claim 1 fails to state a claim, Complainant is still unable to establish harassment. Our case law provides that where an alleged discriminatory act is that the complainant was accused of sexual harassment is insufficient to establish harassment/hostile work environment because it does not have the purpose or effect of unreasonably interfering with work performance and/or creating an intimidating, hostile, or offensive work environment. See Stanford v. Dep 't of the Army, EEOC Appeal No. 0120064201 (Oct. 2, 2007). 2021000179 4 Claim 2, where the Postmaster instructed Complainant to bring a doctor’s note for one day of absence, even though a doctor’s note is not required unless the employee is absent for three consecutive days, is not sufficiently severe or pervasive to constitute harassment. Complainant does not appear to have been marked AWOL or otherwise harmed by the request (aside from the inconvenience of obtaining the note which, under these circumstances, would not be considered “severe”). CONCLUSION Accordingly, the Agency’s final decision 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 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). 2021000179 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 January 14, 2021 Date