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

Equal Employment Opportunity Commission

Jan 27, 2021

Appeal No. 2020000667 (E.E.O.C. Jan. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Romaine H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000667 Hearing No. 430-2019-00148X Agency No. 1K-276-0001-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 20, 2019, final order concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency subjected him to discriminatory harassment based on his age, race or sex, or in reprisal for protected EEO activity, or sexual harassment. 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. 2020000667 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Labor Custodian (PS- 4) at the Agency’s Processing and Distribution Center in Rocky Mountain, North Carolina. During the relevant timeframe, Complainant reported to his first-line supervisor (S1) (age 55, “mixed” race, female). Report of Investigation (ROI) at 178, 780-1. On January 13, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discriminatory harassment on the bases of sex (male) and age (63) when: 1. on October 4, 2017, while discussing schedule issues, S1 instructed Complainant to leave the office; 2. on October 9, 2017, Complainant became aware that he was not scheduled for the Columbus Day holiday; 3. on October 10, 2017, Complainant was questioned about starting work earlier than scheduled; 4. on October 10, 2017, Complainant was subjected to a discussion; 5. on October 14, 2017, November 23, 2017, and on other date(s), Complainant’s request to start earlier than his scheduled start time has been denied; 6. on October 20, 2017, after calling off work, Complainant was contacted at home; 7. on October 21, 2017, October 24, 2017, October 27, 2017, and on other date(s), copies of the Agency’s attendance policy and other attendance forms were placed in Complainant’s assignment box; 8. on October 25, 2017, Complainant was subjected to an attendance review; 9. on October 26, 2017, Complainant was subjected to a pre-disciplinary interview; 10. on November 26, 2017, Complainant’s approved change of schedule for November 25, 2017, through December 11, 2017, was cancelled; 11. on December 7, 2017, Complainant’s change of schedule was denied; 12. on December 29, 2017, S1 stood in close proximity to Complainant, which he believed constituted sexual harassment; 13. on December 12, 2017, Complainant’s detail position tour schedule was changed; 2020000667 3 14. on December 15, 2017, Complainant’s time was charged to leave without pay; 15. on unspecified date(s), Complainant was not scheduled to work his off days; 16. on December 7, 2017, Complainant submitted a PS Form 3189 (Carrier Auxiliary Control form), which was denied; 17. on December 29, 2017, while in the maintenance corridor, S1 stood in close proximity while looking over Complainant’s shoulder, which he believed constituted sexual harassment; 18. on an unspecified date, Complainant became aware that during pay period 2 in 2018, management recorded his absence as sick leave, which depleted his sick leave balance to zero; 19. on February 3, 2018, Complainant was charged Absent from Overtime for two (2) hours, and he was told that he could no longer request to waive the last two (2) hours when scheduled for eight (8) hours of overtime; 20. on February 2, 2018, Complainant received a harassing text message on his phone from S1;2 21. during pay period 4 in 2018, Complainant was charged with eight (8) hours of annual leave that he did not use; and 22. on February 13, 2018, Complainant was denied his call-in request for eight (8) hours of approved Family and Medical Leave Act leave. Complainant amended his complaint and alleged that the Agency subjected him to discriminatory harassment on the bases of race (African-American), sex, and age when: 23. on March 13, 2018, Complainant was subjected to a pre-disciplinary interview; 24. on unspecified date(s), Complainant’s request for a change of schedule was denied; Complainant amended his complaint again and alleged that the Agency subjected him to discriminatory harassment on the bases of sex and age, and in reprisal for prior protected EEO activity (instant EEO complaint), when: 2 S1’s text message stated, “by you working Saturday you do not work Friday Feb 9.” ROI at 649. The text message was not addressed to Complainant, and S1 stated that she accidentally texted Complainant because she had employees’ names mixed up on her phone. ROI at 845. 2020000667 4 25. on April 12, 2018, April 15, 2018, and May 5, 2018, Complainant was bypassed for higher level (PS-7) duties and pay; 26. on April 12, 2018, April 14-15, 2018, and May 5, 2018, Complainant was bypassed for overtime; 27. on April 17, 2018, during a meeting in S1’s office, S1 instructed Complainant to leave the office; 28. on April 19-20, 2018, May 2, 2018, May 8, 2018, and May 10, 2018, while out on sick leave, S1 called and/or texted Complainant on numerous occasions; 29. on April 20, 2018, and other date(s), Complainant was required to use sick leave, even though he had annual leave to use; 30. on April 20, 2018, May 4-6, 2018, and other date(s), Complainant was bypassed for overtime; 31. on April 25, 2018, S1 denied Complainant’s request for documents to file and report an injury that he sustained while on duty; 32. on May 18, 2018, Complainant was required to use a PS Form 1260 (Non-Electronic Badge Reader Card) for some of his May 17, 2018 clock rings; and 33. on May 24, 2018, S1 questioned Complainant, in a harassing tone, what he was working on, instructed to him work faster, and threatened him with disciplinary action. In his affidavit, Complainant stated that incident 16 should be “disregarded” because he never submitted the form and he withdrew incident 21. Complainant also stated that incidents 11, 16, and 24 were the same. ROI at 223, 246, 219. As such, we consider incidents 11, 16, 21, and 24 as withdrawn. Complainant stated that incident 2 was the same as incident 15, and that incident 12 was the same as incident 17. ROI at 184, 230, 222, 236, 253. In addition, the Agency dismissed incident 22 for failure to state a claim because it was a collateral attack on the proceedings of another forum.3 ROI at 71-3. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. 3 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s procedural dismissal of this claim; as such, we will not address it in the instant decision. 2020000667 5 Over Complainant’s objections, the AJ assigned to the case granted the Agency’s June 19, 2019 motion for a decision without a hearing and issued a decision without a hearing on September 18, 2019. As an initial matter, the AJ noted that both parties’ motions to compel were previously denied. In addition, the AJ stated that Complainant’s Motion for Sanctions (Default Judgment) was denied and that Complainant filed another Motion for Sanctions on July 8, 2019, which the Agency opposed on July 19, 2019. The AJ stated that she reviewed all the documents in the ROI and those submitted by the parties, and she agreed with the Agency’s statements of facts and legal analyses and adopted its motion in its entirely. The AJ concluded by granting summary judgment in the Agency’s favor on all claims. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and the Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL With his appeal, Complainant submitted his July 24, 2019 reply to the Agency’s opposition to his second motion for sanctions and default judgment. Complainant argued that the Agency failed to submit a response to his July 8, 2019 Motion for Sanctions, and it failed to comply with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Chap. 6 (Aug. 5, 2015); 29 C.F.R. §1614.102(c)(5); and the AJ’s Acknowledgement Order and Order on Initial Conference, Deadlines and Record Completion. Complainant requested that the AJ consider his motion unopposed and grant it. The Agency argues that Complainant failed to address the arguments in its Motion for Summary Judgment or set forth grounds to reverse the AJ’s decision. The Agency asserts that while Complainant was not satisfied with some of his work assignments and schedule, he did not show that S1 was motivated by his age, race, sex, or protected EEO activity. The Agency notes that Complainant failed to respond to a majority of the questions in his affidavit and offered no evidence that S1 was singling him out due to his protected bases. The Agency also argues that none of the conduct was sufficiently severe or pervasive to create a hostile work environment. The Agency requests that the Commission affirm its final order adopting the AJ’s decision. ANALYSIS AND FINDINGS 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 . . .”); see also EEO MD-110, at Chap. 9, § VI.B. (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2020000667 6 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 the 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 Chap. 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 law”). Decision without a hearing 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. 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. 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 did not provide specific arguments on appeal addressing the merits of his complaint, and a review of the record does not reveal any genuine disputes of material facts. To the extent that Complainant argues that his Motion for Sanctions should be granted, the record shows that Complainant’s first motion was denied on June 5, 2019. Complainant did not argue that there were any errors in the denial and only asserts that his second Motion for Sanctions should be granted because the Agency did not oppose it. However, Complainant submitted his reply to the Agency’s opposition, which shows that the Agency opposed his second motion. We find that Complainant has not presented an adequate justification to revisit the denial of his Motion for Sanctions, and we find that the AJ properly issued a decision without a hearing. 2020000667 7 Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). As an initial matter, we note that the Commission has found that a discrete action states a claim outside of the framework of a harassment analysis, and that it can also be reviewed within the disparate treatment context. See Moylett v. U.S. Postal Serv., EEOC Appeal No. 0120091735 (Jul. 17, 2012), Sedlacek v. Dep’t of Army, EEOC Appeal No. 0120083361 (May 11, 2010). In this case, we note that some of the listed incidents of alleged harassment are discrete actions. However, the Agency issued multiple acceptance letters and only accepted Complainant’s complaint alleging discriminatory harassment. We note that the Agency instructed Complainant to contact the Agency within seven (7) days if he did not agree with the defined accepted issue, and there is no evidence that Complainant informed the Agency that he did not agree with the acceptance of his complaint as a claim of discriminatory harassment. ROI at 37, 49, 59, 71, 84. As such, we will only consider any discrete actions as part of Complainant’s harassment claim. We find that Complainant is a member of protected classes based on his age, race, sex, and protected EEO activity, and that he was subjected to unwelcome verbal conduct. However, we find that Complainant did not show that any of the complained of conduct was due to his protected classes. For example, Complainant made unsupported assertions that S1 was a “woman manager [who] subjugates male employee”; S1 was “offended by everything about” Complainant, including his age; and S1 had difficulty with the “type of man” that Complainant was. ROI at 191, 210. In addition, while a witness stated that “no one was treated as bad” as Complainant, the witness did not attribute the bad treatment to any of Complainant’s protected categories. ROI at 1020. Complainant also provided unsworn witnesses statements; however, none corroborated that S1’s actions were due to Complainant’s age, race or sex, or in reprisal for protected EEO activity. ROI at 294-5, 313-14. Even crediting Complainant’s assertion that S1 was rude and dismissive, we note that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Here, none of S1’s actions were so objectively offensive as to alter the conditions of Complainant’s employment. As such, we find that Complainant did not establish that the Agency subjected him to harassment based on his age, race or sex, or in reprisal for protected EEO activity. 2020000667 8 Sexual harassment To establish a case of sexual harassment creating a hostile work environment, Complainant must show, by a preponderance of the evidence, that: (1) he belongs to a protected class; (2) he was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., supra; 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., supra. In this case, Complainant alleged that S1 sexually harassed him when on December 29, 2017, S1 came up behind him and asked in a “seductive tone” if she could look over his shoulder at the assignment sheet. ROI at 222. However, Complainant did not show that this single incident was based on his sex, or that it unreasonably interfered with his work environment or created an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant did not establish that the Agency subjected him to sexual harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency subjected him to a hostile work environment based on his age, race or sex, or in reprisal for protected EEO activity, or sexual harassment. 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. 2020000667 9 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. 2020000667 10 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 27, 2021 Date