[Redacted], Oda H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2020005467 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Oda H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020005467 Agency No. 4E-890-0019-20 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 September 3, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Rural City Carrier at the Agency’s Meadow Mesa Station in North Las Vegas, Nevada. On January 27, 2020, Complainant filed a formal EEO complaint claiming that the Agency subjected her to discriminatory harassment based on race (Black), sex (female), and in reprisal for prior protected EEO activity (reporting sexual harassment) when: 1. From May 2019 through the end of 2019, Complainant has been a victim of sexual harassment when her Supervisor (S1) has repeatedly asked her on dates, sexually propositioned her, made sexual innuendos and sent her nude pictures of himself. 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. 2020005467 2 2. Since November 16, 2019, after Complainant’s Postmaster was made aware of the alleged sexual harassment: a. Complainant has been refused assistance with pay stub and corrections to payroll error; and b. Complainant’s schedule has been adjusted and her work hours reduced. After its investigation into the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). According to the Agency, however, Complainant did not respond to the notice. Therefore, on September 3, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), based on the evidence developed during the investigation concluding no discrimination was established. The instant appeal followed. On appeal, Complainant, through counsel, argues that the Agency erred in issuing the September 3, 2020 final decision on the merits of her claims. Complainant asserts that she had, in fact, requested a hearing before an EEOC AJ within thirty days of receipt of the investigative report. Complainant provides a copy of a document entitled Request for Hearing Form, which was completed and signed by Complainant’s attorney on July 22, 2020. Complainant asserts that the form was mailed to the designed Post Office Box in Tampa, Florida via US Mail on July 22, 2020. With respect to the merits of the Agency’s decision, Complainant argues that the Agency’s final decision failed to also address Complainant’s additional harassment claims that occurred after her sexual harassment claim against S1 had been reported. ANALYSIS AND FINDINGS Preliminary Matter - Request for Hearing As an initial matter, we address Complainant’s argument on appeal that she requested a hearing before an EEOC AJ. For reasons discussed further before, we find that Complainant has presented insufficient evidence to support that she properly filed a request for a hearing. A copy of the June 25, 2020 transmittal of the report of investigation and notice of right to a hearing or immediate final agency decision directed Complainant to submit a hearing request to the Hearings Unit at the EEOC’s Los Angeles District Office (address provided), as well as a copy of the hearing request to the Agency at a provided address in Tampa, Florida. Here, Complainant’s counsel asserts, on appeal, that she submitted the hearing request to the designated Tampa, Florida Post Office Box via regular mail on July 22, 2020. 2020005467 3 However, Complainant has not provided any evidence that the request was actually mailed on July 22, 2020, including a sworn statement from the attorney attesting to when she mailed the hearing request. The Agency denies ever receiving the request for a hearing. Moreover, Complainant has only asserted that a hearing request was filed with the Agency and not with the EEOC’s Hearings Unit at its Los Angeles District Office as required by our regulations and the explicit instructions in the Agency’s notice. Our review of EEOC’s hearings records contains no indication that a hearing request was ever received by the Los Angeles Hearings Unit. The Commission has previously held that when provided with the proper address, filing at the wrong address does not constitute a proper filing. See Pacheco v. United States Postal Service, EEOC Request No. 05930700 (September 10, 1993) (appeal untimely when sent to wrong address despite receipt of proper instructions); Meggitt v. United States Postal Service, EEOC Appeal No. 01A40408 (February 3, 2004)(above principle applied to a formal complaint that was untimely filed). In sum, we find insufficient evidence that Complainant properly filed a hearing request and, as such, the Agency properly issued a final decision on the merits of Complainant’s complaint. Therefore, we will now address the Agency’s final decision on the merits of Complainant’s claims. Discriminatory Harassment (Claim 1) Unwelcome sexual conduct constitutes sexual harassment in violation of Title VII when “submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment.” 29 C.F.R. §1604.11(a). Sexual harassment by a supervisor can be categorized, for analytical purposes, into two varieties: (1) harassment where sexual consideration is demanded in exchange for job benefits (known as quid pro quo harassment); and (2) harassment that creates an offensive and hostile work environment. Id. Here, Complainant has alleged that S1 repeatedly asked her on dates, sexually propositioned her, made sexual innuendos and sent her nude pictures of himself. However, she has not alleged that he engaged in quid pro quo harassment. Therefore, we will analyze her claims regarding S1’s conduct in the context of the alleged creation of a hostile work environment. To establish a claim of discriminatory hostile work 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). 2020005467 4 The record reflects that S1’s alleged interactions with Complainant were of an offensive sexual nature. However, our review of the record indicates that Complainant has failed to establish a basis for imputing liability for his actions to the Agency as employer. It is undisputed that S1 was one of Complainant’s supervisors. In the case of where no quid pro quo harassment is alleged, as here, the employing agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show: (a) it exercised reasonable care to prevent and promptly correct any harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Here, the record reflects that management was not made aware of the alleged incidents of sexual harassment (which are asserted to have started in May 2019) until mid-November 2019 after Complainant told a co-worker (CW1) about the incidents. CW1 reported that allegations to management without Complainant’s knowledge. On November 16, 2019, P1 stated that he spoke with Complainant about a rumor he had heard about sexual harassment of Complainant by S1. Although P1 informed Complainant that she was not in trouble and he only wanted to speak with her, Complainant was unwilling to talk about S1’s harassment. Complainant explained that she felt “uncomfortable” at the time discussing the matter “because of management’s interest in protecting themselves and their general tolerance of a sexually hostile work environment.” Despite Complainant’s reluctance to speak with P1, the record indicates that P1 continued with the November 16 investigative interview with Complainant. During the interview, Complainant was asked, among other questions: (1) if she was sexually harassed by S1 in the form of explicit pictures he sent to her; (2) if S1 promised her anything in exchange or personal favors; and (3) how long she and S1 had been exchanging photos and text messages? To these questions, Complainant responded, “I don’t know,” “I don’t know what you’re talking about,” and “for all these questions, I don’t know anything.” The record indicates that P1 also interviewed CW1, who confirmed that he saw the text messages and pictures exchanged between Complainant and S1. Despite Complainant’s refusal to answer his questions, P1 stated that he placed S1 on administrative leave. Additionally, the record reflects that P1 interviewed S1 on November 25, 2019. Notes from this interview indicate that S1 informed P1 that the communications between him and Complainant were consensual, they both sent pictures of their body parts to each other, and Complainant had sent him pictures of her in a swimsuit and another picture where she was wearing lingerie. As a result, S1 was relocated to a different post on December 21, 2019, and was placed on Off-Duty Status effective January 16, 2020. A copy of S1’s January 15, 2020 Off-Duty Status letter states that S1 was placed on off-duty status for the following reason: An initial investigation has disclosed that you sent explicit pictures of yourself via text and participated in an inappropriate relationship with a subordinate employee. 2020005467 5 Your actions have resulted in the disruption of the day-to-day postal operations, and your actions could potentially be viewed as injurious to self or others. Both Complainant and S1 indicate that the last reported incident of sexual harassment occurred on May 17, 2019. On this day, Complainant informed S1 by text message that she “had no interest in any romantic or sexual relationship with him.” S1 testified that in response to Complainant’s May 17, 2019 text, he let Complainant know that he would no longer call or text her regarding nonwork-related matters. Therefore, the record supports a determination that Complainant did not report any allegations of sexual harassment until she initiated EEO Counselor contact on December 15, 2019. Nevertheless, the Agency took prompt action when it had reasonably suspected that there was an allegation of sexual harassment involving Complainant and S1 as early as mid-November 2019. P1 promptly conducted an investigative interview after CW1 inquired about the process for reporting sexual harassment and led P1 to suspect the sexual harassment involved Complainant and S1. However, even when Complainant failed to participate in the investigative interview, P1 continued the investigation by questioning S1. As a result, S1 was relocated to another post office and placed on off-duty status on January 16, 2020. This sequence of events indicates that there is no basis for imputing liability for S1’s actions to the Agency because Complainant failed to report the harassment to anyone at the Agency and management did not even learn of it second-hand until nearly six months after the latest incident of harassment. Upon hearing rumors of the harassment, the postmaster promptly conducted an investigation, which Complainant declined to cooperate in. Despite this, S1 was interviewed, transferred to another location and then placed in an off-duty status. In sum, we conclude Complainant has failed to establish a claim of discriminatory harassment in violation of Title VII against the Agency. Disparate Treatment - (Claim 2) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2020005467 6 Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our review of the record supports that the Agency articulated legitimate, non-discriminatory reasons for its actions. Pay Stub Correction (Claim 2a) P1 testified that he did not recall Complainant ever addressing a payroll issue with him. If Complainant had mentioned this issue, P1 stated that he would have corrected it as soon as possible. Adjusted Work Schedule/Reduced Hours (Claim 2b) Complainant’s first level Supervisor as of January 2020 (S1b) testified that she was responsible for Complainant’s schedule beginning in January 2020. S1b explained that Complainant’s position only guaranteed that she be assigned one day a week. S1b further explained that Complainant’s schedule was adjusted per her request to not work Fridays because she had another job. Additionally, S1b clarified that all Rural City Carriers, like Complainant, were assigned additional hours in December due to the Christmas rush, but all hours were reduced in January because there was no longer a need for the extra hours. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, and reprisal for prior protected EEO activity. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2020005467 7 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). 2020005467 8 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 August 9, 2021 Date