[Redacted], Shela O., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 16, 2021

Appeal No. 2020003449 (E.E.O.C. Sep. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shela O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020003449 Hearing No. 520-2020-00055X Agency No. 1B-114-0005-19 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 April 24, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that she was subjected to unlawful sexual harassment or sex discrimination when she was issued a notice of removal. 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. 2020003449 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Receiving Clerk Foreign Air Mail at the Agency’s New York International Service Center, John F. Kennedy Airport in Jamaica, New York. Complainant stated that she was subjected to sexual harassment and sexual advances from two individuals.2 For example, Complainant stated that an acting Manager Distribution Operations (AMDO) referred to her as his “wife,” touched her body, and searched for her social media; and a Lead Clerk (LC) took photos of Complainant without her consent. Complainant stated that AMDO and LC followed her around, stared at her, and asked others for her location. Complainant stated that she notified management, but not much had been done. Report of Investigation (ROI) at 6, 16. On or about April 12, 2019, a Supervisor Distribution Operations (SDO) (female) issued Complainant a Notice of Removal for Continuously Absent Without Leave (Notice). SDO noted that Complainant had been absent since January 17, 2019, and she had not provided documentation to support her absences. SDO stated in the Notice that Complainant also failed to follow instructions when she did not respond to the Absence Notification Letters sent on January 26, 2019, and February 15, 2019; or the Absence Without Official Leave Letter sent on March 7, 2019. SDO also noted that Complainant was instructed to appear for a pre-disciplinary interview on March 29, 2019, but she did not appear until March 30, 2019. SDO stated that Complainant was instructed to provide documentation to support her absences by April 5, 2019, and she failed to do so. SDO added that Complainant had not returned to duty. ROI at 122-3. On June 5, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her sex (female) when: 1. on unspecified dates, Complainant was sexually harassed by AMDO and LC; and 2. on April 19, 2019, Complainant was issued a Notice of Removal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request when Complainant did not respond to the AJ’s Order to Show Cause and failed to explain why she did not appear for the initial conference. The AJ remanded the complaint to the Agency to issue a final decision pursuant to 29 C.F.R. § 1614.110(b). 2 Complainant did not provide a completed affidavit to the EEO Investigator and her statements are taken from her formal complaint and the EEO Counselor’s Report. 2020003449 3 On April 24, 2020, the Agency issued a final decision. The Agency assumed a prima facie case of sex discrimination and found that management officials articulated legitimate, nondiscriminatory reasons for removing Complainant when she was continuously absent since January 17, 2019, and she failed to submit acceptable documentation. The Agency then found that Complainant did not establish pretext for discrimination. The Agency also determined that Complainant did not show that she was subjected to unwelcome verbal or physical conduct related to her protected class, or that the incidents were severe or pervasive enough to constitute a hostile work environment. The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of her appeal, along with a witness statement. The Agency did not provide a response to Complainant’s appeal statement. CONTENTIONS ON APPEAL Complainant argues that her reports of sexual harassment were dismissed by management. She states that a Manager Distribution Operations (MDO) (male) informed her that the situation would be handled “in-house” and that he warned AMDO and LC to stay away from Complainant. Further, MDO encouraged her to inform him if either disobeyed. However, Complainant asserts that, while “a simple warning to both employees was a start”, she did not believe it was sufficient action “for an incident [of] this magnitude.” Following MDO’s warnings, Complainant states that she saw LC in her section and had to walk past AMDO, who watched her walk by. Complainant asserts that SDO and MDO understood that she was not returning to work due to the severity of the toxic workplace and concerns for her safety. Complainant states that it was difficult to get a doctor’s note because her situation was one of sexual harassment, and not sexual assault. 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 (EEO MD-110), at Chap. 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 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”). 2020003449 4 ANALYSIS AND FINDINGS New evidence on appeal As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that the new witness statement was not available during the investigation, nor any explanation as to why it was not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. 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) she belongs to a protected class; (2) she 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., EEOC Appeal No. 01965238 (Oct. 16, 1998); 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., EEOC Notice No. 915.002 (Mar. 8, 1994). We find that Complainant belongs to a protected class and that she was subjected to unwelcome conduct that can be construed as sexual advances or of a sexual nature. Assuming that the alleged conduct created a hostile work environment, we find that there is no basis for imputing liability on the Agency because management took immediate and corrective action, as described below, in response to Complainant’s report of the alleged sexual harassment. With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). An employer may be subject to vicarious liability for harassment by a supervisor who does not have actual authority over the employee, if the employee reasonably believed that the harasser had such power. However, if the harasser had no actual supervisory power over the employee, and the employee did not reasonably believe that the harasser had such authority, then the standard of liability for coworker harassment applies. See Marielle L. v. Soc. Sec. Admin., EEOC Appeal No. 0120162299 (Mar. 29, 2018). Here, we find that, while AMDO is a manager and LC is a lead, there is no indication that either was in Complainant’s chain of command or had any authority over her. 2020003449 5 As previously noted, Complainant did not return a completed EEO affidavit and, therefore, there is no testimony from her that she reasonably believed the alleged harassers had authority over her employment. In the case of coworker harassment, an 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 be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep’t of the Air Force, EEOC Request No. 05920194 (July 8, 1992). Here, MDO stated that Complainant alleged that the sexual harassment began in October 2016, but she did not report it for over two years. MDO stated that he met with Complainant on October 6, 2018, to discuss her allegations. According to MDO, Complainant reported that AMDO made her uncomfortable with the way he looked at her and stood behind her, and that he once touched her lower back. Further, Complainant informed him that she asked her supervisor (S1) to speak with AMDO. MDO stated that he confirmed with S1 that she spoke with AMDO and that his behavior ceased. S1 also informed him, explained MDO, that Complainant recently reported LC’s alleged harassment and so MDO initiated an investigation. MDO stated that he also spoke with AMDO and LC and instructed them to immediately stop this behavior, and they agreed. When MDO and S1 followed-up with Complainant multiple times over the next two and a half months, asserted MDO, she stated that everything was fine. ROI at 66-7, 108-9. On appeal, Complainant stated that AMDO and LC were subsequently in her vicinity. However, we note that Complainant did not assert that either interacted with her since S1 and MDO instructed them to cease their behavior. While Complainant complains that AMDO watched her as she walked past him, we find that this was not objectively harassing behavior. Based on the particular facts of the case, we find that the Agency acted immediately and appropriately in response to Complainant’s report of sexual harassment. Accordingly, we find that Complainant did not establish that the Agency subjected her to unlawful sexual harassment. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802, n.13. 2020003449 6 Once Complainant has established a prima facie case, 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of sex discrimination, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. SDO stated that she issued the Notice of Removal based on Complainant’s continuous absence since January 17, 2019, and her failure to provide acceptable documentation in support of those absences. ROI at 82. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant asserts that SDO and MDO understood that she was not returning to work due to the severity of the toxic workplace and concerns for her safety. However, there is no evidence in the record showing that Complainant responded to the Agency’s requests for an explanation and documentation to support her continued absence since January 17, 2019. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s action. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her sex when it issued her a Notice of Removal. 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 decision finding that Complainant did not establish that she was subjected to unlawful sexual harassment or sex discrimination when she was issued a Notice of Removal. 2020003449 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). 2020003449 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, Director Office of Federal Operations September 16, 2021 Date