[Redacted], Shantay H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Apr 28, 2022

Appeal No. 2022001547 (E.E.O.C. Apr. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shantay H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001547 Agency No. 1F-341-0036-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 14, 2022, dismissing a formal complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Distribution Operations Manager at the Agency’s Chicago Network Distribution Center in Chicago, Illinois. On December 22, 2021, Complainant filed a formal EEO complaint claiming that the Agency subjected her to discriminatory harassment based on sex, age, and in reprisal for prior protected EEO activity when: 1. beginning on August 30, 2021, Complainant was bullied and intimidated by her co-workers, and when she reported the matter to her senior manager, he did nothing; 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. 2022001547 2 2. on October 19, 2021, the Plant Manager appointed one of Complainant’s co- workers as Senior Lead Manager and Complainant was required to report to him; and 3. on October 29, 2021, the IT Manager told Complainant that she could not have two offices. On January 14, 2022, the Agency issued its final decision dismissing formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1), finding that the claims were not sufficiently severe or pervasive enough to constitute a hostile work environment claim. The instant appeal followed. ANALYSIS AND FINDINGS The regulation at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any 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). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. 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 a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:” and the complainant subjectively perceives it as such. Harris, supra at 21-22. In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliations, and it reasonably interferes with an employee’s work performance. Id. at 23. Thus, not all claims of harassment are actionable. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). In the instance case, even considering all the incidents alleged by Complainant on appeal, in the formal complaint, and during EEO counseling, and assuming they occurred as alleged, we do not find they are sufficiently severe or pervasive to set forth an actionable claim of harassment. 2022001547 3 Here, Complainant alleges that management retaliated against her after she complained about the IT Manager disconnecting her phone and internet access to her office. Complainant explains that she notified the Plant Manager of this issue on October 20, 2021, and that one day later, the Plant Manager Announced that the IT Manager had been selected to serve a detail assignment as the Senior Lead Distribution Operations Manager (Lead Manager), which gave the IT Manager seniority over Complainant. The record reflects that Complainant and the IT Manager had general disputes over whether Complainant had the authority to have access to a laptop and a desktop, and whether Complainant’s reported phone and internet connectivity issues had been resolved. The record further indicates that Complainant disagreed with the IT Manager’s procedure for issuing overtime schedules to employees during his tenure as Lead Manager, and Complainant felt that the IT Manager was targeting her in his new position when he began emailing her about various workplace deficiencies or work issues performed by Complainant’s subordinates. Consequently, Complainant’s claims between management are that of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “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). Therefore, Complainant’s formal complaint of harassment fails to state a claim upon which relief can be granted pursuant to 29 C.F.R. § 1614.107(a)(1). Finally, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998). CONCLUSION The Agency’s final decision dismissing the formal complaint for failure to state a claim 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. 2022001547 4 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). 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. 2022001547 5 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 April 28, 2022 Date