[Redacted], Tena C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Mar 29, 2021

Appeal No. 2020001103 (E.E.O.C. Mar. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tena C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020001103 Hearing No. 510201800169X Agency No. 4G330028817 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 31, 2019 Final Order concerning an 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. At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier (Carrier Craft Class) at the Main Post Office in Hollywood, Florida. On September 26, 2017, Complainant filed a Formal EEO Complaint alleging that she was subjected to a hostile work environment/harassment by the Agency on the bases of race (Black), color (brown-skinned), and sex when: 1. On June 22, 2017, and possibly other dates, she was singled out and told not to assist the Clerks; 2. On June 23, 2017, the manager made threatening remarks; 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. 2020001103 2 3. On June 27, 2017, a manager said she would not give Complainant an acting supervisor detail; 4. On unknown dates prior to June 23, 2017, she informed Agency management she was being ridiculed by co-workers and nothing was done; 5. On dates between October 2016 and June 23, 2017, she was micromanaged for no reason; 6. On October 27, 2017, she was placed on emergency placement through November 1, 2017; 7. On November 2, 2017, she was given an investigative interview; and, 8. On November 2, 2017, she was removed as safety captain and AMS technician. After its investigation into the complaint, 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 “the Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency on October 9, 2019. The Agency issued its Final Order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable factfinder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). On appeal, Complainant has not offered any evidence that would allow a reasonable factfinder to find in her favor. We recognize Complainant’s observation that it is far easier to navigate the EEOC hearing process when represented by legal counsel. However, her allegation that, because of her unrepresented status, she “was cross-examined by [the AJ] as though he was the attorney for the [Agency]” and denied a fair hearing, is not reflected in the record. 2020001103 3 We scrutinized the hearing transcript and found that the questions the AJ asked were necessary to sufficiently develop the record to allow for a reasoned decision, which is consistent with his obligation under 29 C.F.R. § 1614.109. See also MD-110, Ch. 7, Pt. III. We also note that during the hearing, the AJ provided Complainant with guidance and explanations for presenting her case and interrupted Agency Counsel at multiple points to clarify Complainant’s testimony. 2 On appeal, Complainant raises new claims of harassment and other instances of discrimination on the bases of sex, race, and color, as well as age, disability and retaliation for protected activity. We will not adjudicate these new claims and bases here because Complainant neither included them in her formal EEO complaint at issue nor submitted these claims and bases as a motion to amend her complaint while it was before the AJ. If Complainant wishes to pursue these new claims and bases in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision. 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. 2 Resources for complainants without legal counsel can be found under the “Federal Sector” tab on the EEOC Website, which, among other things, includes links to the EEO Digest, which contains articles about legal concepts and example cases for federal employees, as well as links to laws, regulations, and guidance such as the MD-110. See http://www.eeoc.gov/federal-sector. 2020001103 4 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. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2020001103 5 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 March 29, 2021 Date