[Redacted], Rina F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 24, 2021Appeal No. 2019005752 (E.E.O.C. Feb. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rina F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2019005752 Agency No. 1K-302-0069-18 DECISION On July 30, 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 July 2, 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 Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to discrimination and a hostile work environment based on her protected classes and in reprisal for his protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a casual mail handler at the Agency’s Atlanta Processing and Distribution Center in Atlanta, Georgia. 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. 2019005752 2 On August 13, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of sex (female), genetic information (unspecified), and reprisal for prior protected EEO activity when: 1. in March 2018, Complainant reported to two management officials that a coworker had threatened her; however, the supervisors failed to properly address the matter; 2. on or about April 1, 2018, Complainant’s first line supervisor (S1, male) instructed two new employees not to speak with Complainant; 3. in April 2018, the Manager (M1, female) instructed an employee to “watch” Complainant and stated that she (Complainant) was almost fired on several occasions; 4. on April 27, 2018, S2 sent Complainant pictures of his penis to her cell phone, which she believed constituted sexual harassment; 5. on or about May 15, 2018, Complainant resigned from the Agency due to the hostile work environment, and later she became aware that her PS Form 50, Notification of Personnel Action form, indicated that she had been terminated; 6. on a date to be provided, in front of her coworkers, the Acting Supervisor of Distribution Operations (A-SDO, male) stated that Complainant was “at the bottom” and could be fired at any time; and 7. on September 4, 2018, Complainant's request to be rehired was denied. The investigative record reflects the following pertinent matters relating to the subject claims. In March 2018, Complainant reported the Supervisor of Distribution Operations (SDO, male) and the Manager of Distribution Operations (MDO, female) that a coworker had threatened her. Specifically, the coworker allegedly said, “Bitch, don’t touch me, I’ll snap your fucking neck.” Complainant asserted that she informed SDO and MDO what occurred but neither supervisor addressed the situation. S1 and MDO stated that they were unaware of any employee threatening Complainant. SDO stated that Complainant informed him that someone threatened her, so he requested that Complainant write a statement and asked Complainant to let him know who threatened her so he could begin an investigation. Complainant allegedly responded, "You mother fucker ain't going to do shit. You all can kiss my ass." SDO stated that Complainant then turned and walked away while continuing to use profanity. Complainant never specified which employee threatened her. SDO did not investigate the matter further. On or about April 1, 2018, Complainant alleged that S1 instructed two new employees not to speak her because she was “bad news.” Complainant asserted that she confronted S1, who yelled at and embarrassed her. S1 denied telling new employees to avoid Complainant. 2019005752 3 S1 stated that it was Complainant who caused a disruption at work. Complainant noted that she later apologized to S1 for the altercation. Also, in April 2018, Complainant asserted that M1 instructed the Lead Manager of Distribution (L1) to watch Complainant, and informed L1 that Complainant was almost fired on several occasions. M1 and L1 denied the allegation. On April 27, 2018, a Supervisor of Distribution Operations (S2, male) sent Complainant pictures of his penis to her cell phone. Complainant stated that she forwarded the pictures to an EEO Official (E1). There is no documentation demonstrating that the photos were forwarded to E1 or that E1 was aware of such pictures prior to the investigation being conducted. Management officials stated that they were unaware and did not reasonably suspect that S2 had sent unsolicited pictures of his penis to Complainant. When questioned during the investigation, S2 denied2 sending the explicit photos and asserted that he was the only one that helped Complainant at the time. S2 asserted the incident was fabricated. Complainant submitted screenshots of several explicit photos from a cellphone number she had listed as being from S2. SDO noted that S2 had been terminated from the Agency but did not explain under what circumstances and when S2 was terminated. On or about May 15, 2018, Complainant resigned from the Agency. Complainant informed S1 and MDO that she was resigning. S1 and MDO stated that Complainant resigned due to lack of hours and pay, as originally noted on her resignation papers. However, Complainant later learned that her PS Form 50, Notification of Personnel Action, indicated that she had been terminated. The PS Form 50 dated May 15, 2018 and authorized by the Manager of Human Resources3 noted that the Agency should not rehire Complainant due to her lack of attendance, and disrespectful behavior towards management. The form also indicated that Complainant had been terminated as a non- career employee. Complainant believed that MDO had made the change to prevent her from being rehired in future by the Agency. MDO denied making any changes to Complainant’s resignation documents and asserted that she was unsure who, if anyone, had made the alleged changes. MDO and M1 noted that resignation paperwork was handled by another office and that neither knew who processed it, and whether a mistake had been made. There is no signed documentation demonstrating Complainant’s resignation. The record contains a Resignation/Transfer form stating that Complainant was resigning effective May 18, 2018, and that the resignation was due to “other” and “lack of pay” reasons. This form is signed by S1, but not Complainant. On an unspecified date, Complainant asserted that the A-SDO, in front of her coworkers, stated that Complainant was “at the bottom” and could be fired at any time. A-SDO stated that the incident was mischaracterized. A-SDO stated that the incident occurred when Complainant complained about being moved to different operation. 2 S2 did not provide a response to an affidavit request. However, he was interviewed by the EEO Investigator and his responses were found in the EEO investigation. 3 The Manager of Human Resources was not interviewed, nor sent an affidavit request. 2019005752 4 A-SDO explained to Complainant that as a causal employee she was at the bottom of the seniority list per the Collective Bargaining Agreement (CBA). Due to this status, she, as all causal mail handlers, was among the first to be moved out of an operation. Management then moved mail handler assistants and then regular employees last. A-SDO denied saying to Complainant that she could be fired at any time. On September 4, 2018, Complainant's request to be rehired was denied. Complainant asserted that another employee, who she did not name, overheard the MDO tell S1 to fire Complainant and change her paperwork from “resigned” to “terminated.” Complainant asserted that because her papers said she was terminated, the Agency refused to rehire her. Both MDO and S1 denied changing anything on Complainant’s paperwork. MDO and S1 asserted that they were not involved in Complainant's request to be rehired and did not know she was denied. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant’s appeal reiterates the events of her claims. Complainant states that the process has been incredibly stressful and that it was apparent that management had no interest in assisting her. For example, Complainant asserts that she has had payroll issues and clock ring deletes, but that management was so resistant that anytime she requested aid, the environment became even more hostile. Additionally, Complainant asserts that that the investigation was very drawn out, not completed in a timely manner, and “some things were left out.” In a separate appeal letter Complainant details that that the investigation was inadequate because it seemingly left out documents from the investigative file. Complainant submits a letter from the Agency dated August 23, 2019, that attached an affidavit, dated April 7, 2019, from a Supervisor of Distribution Operations (SDO1, male) regarding this complaint. The Agency letter stated that the attached information was submitted after the completion of the investigative file. Complainant questions whether the investigation was taken seriously considering this mishap. The Agency did not file brief in reply to the appeal. STANDARD OF REVIEW 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, at Chapter 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 2019005752 5 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”). ANALYSIS AND FINDINGS Complaint Processing We note that Complainant raised concerns with the processing of her complaint on appeal. Specifically, Complainant asserts that the investigation was inadequate because it seemingly left out documents from the investigative file. Complainant attached a letter from the Agency dated August 23, 2019, that informed Complainant that an April 7, 2019 affidavit from SDO1 was submitted after the completion of the investigative file. A review of the record demonstrates that the Agency’s August 23, 2019 letter was sent in error. The investigative report has an exact copy of SDO1’s April 7, 2019 affidavit. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. Despite Complainant’s appellate statements, the Commission determines that the investigation was properly and adequately conducted. Disparate Treatment - Claims 5 and 7 Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. Tex. Dep’t of Cmty. 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). To establish a prima facie case of discrimination, a complainant must show that: (1) she is a member of a protected group; (2) she suffered an adverse employment action; and (3) the circumstances give rise to an inference of discrimination. We note that, although a complainant bears the burden of establishing a “prima facie” case, Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981), the requirements are “minimal,” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993), and complainant’s burden is “not onerous.” Burdine, 450 U.S. at 253. For her claim of reprisal, Complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). 2019005752 6 First, we note that during the investigation Complainant did not specify what genetic information was used to discriminate against her. Complainant repeatedly asserted that the named officials were aware of certain unspecified information that dictated how she was treated. However, Complainant also acknowledged that management had never requested any genetic information about her or anyone in her family. In the absence of contradicting evidence, we find that, to the extent that the Agency had any knowledge or awareness of Complainant's genetic information, Complainant has not met her burden of proof to show that such information played a role in any of the incidents at issue. In this matter, Complainant failed to establish a prima facie case of discrimination regarding her resignation paperwork (claim 5) and her request to be rehired (claim 7). While Complainant has demonstrated that she is a member of the protected group, was qualified, and suffered alleged adverse employment actions, she failed to establish part 4 of a prima facie case. We acknowledge that the requirements are minimal and that the burden is not onerous. Nonetheless, Complainant failed to provide any information such as comparator data that would demonstrate that the circumstances in claims 5 and 7 give rise to an inference of discrimination. Sexual Harassment - Claim 4 It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a sexual harassment claim, the complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex; (3) that the harassment complained of was based on her sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982)). An employer is subject to vicarious liability for unlawful harassment if the harassment was “created by a supervisor with immediate . . . authority over the employee.” Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, at 4 (June 18, 1999). However, where, as here, the harassment by a supervisor creates an unlawful hostile environment but does not result in a tangible employment action, the employer can raise an affirmative defense to liability, which it must prove by a preponderance of the evidence. The defense consists of two elements: (a) the employer exercised reasonable care to prevent and correct promptly any harassment; and (b) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Id. at 12. Complainant is a member of a statutorily protected class, who was subjected to unwelcome conduct related to her protected class and the actions created an intimidating, hostile, work environment. 2019005752 7 For purposes of this decision, we will assume that Complainant's version of these events is the accurate version as alleged in claim 4. Therefore, for argument’s sake, we find that she satisfied elements 1 through 4 of her claim of harassment. Notwithstanding, we find that there is no basis for imputing liability to the employer in claim 4 because the Agency was able to raise an affirmative defense to liability. There is no documentation that Complainant reported the photos or S2’s harassing behavior to any management official. There is no demonstration that the Agency was put on notice of such sexually harassing behavior, and therefore would have been able to remedy the situation. While the unsolicited photos are highly disturbing and inappropriate, there is no evidence for imputing liability to the Agency. Alexia D. v. U.S. Postal Serv., EEOC Appeal No. 0120151435 (Aug. 16, 2017). Unlawful Harassment Claims 1, 2, 3, and 6 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, her sex, genetic information, and protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). In her harassment claim, in addition to the incidents discussed above, Complainant generally alleged that management subjected her to a hostile work environment through a variety of incidents. For example, Complainant asserted that she was subject to ongoing hostility by management. Complainant also noted that when she was harassed at work by a coworker management chose to do nothing, which further exacerbated the harassment (claim 1). However, the record demonstrates that when the incident was reported to SDO, he attempted to assist Complainant and her refusal to cooperate hindered with any potential investigation. Complainant also noted that S1 informed new employees to stay away from her (claim 2); that M1 was instructed to watch her (claim 3); and that A-SDO would remind her she was at the “bottom” and would threaten to terminate her at any time (claim 6). In those claims, aside from her assertion there is no evidence to corroborate that those events occurred because of her protected bases or in retaliation. Furthermore, 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 or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As already concluded above, there is no evidence to support a finding that Complainant’s protected bases or EEO activity played any role whatsoever in the Agency’s actions. 2019005752 8 Accordingly, 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). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order 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. 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). 2019005752 9 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, Director Office of Federal Operations February 24, 2021 Date Copy with citationCopy as parenthetical citation