[Redacted], Virginia T., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2021000393 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virginia T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021000393 Agency No. 1C151003020 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's September 24, 2020 dismissal of her complaint of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee (“PSE”) Mail Processing Clerk, P-06, at the Agency’s Pittsburgh Processing and Distribution Center (“PDC”), located in Pittsburgh, Pennsylvania. On September 14, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment/harassment on the bases of race (Black), national origin (Jamaica), and sex (female) when:2 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. 2 The claims was reframed to better reflect Complainant’s Formal Complaint. 2021000393 2 1. On May 18, 2020, the Acting Manager, Distribution Operations (“M1”), stared at her when she walked to the restroom, yelled, “where is [Complainant],” when he saw her stop to speak with another employee, then continued staring at Complainant when she entered the restroom, and when she left the restroom, M1 was 5 to 10 feet from the restroom door, still staring. He then yelled at her to do work she was not assigned and called a supervisor (“S1”) over to confirm that Complainant was on the correct assignment. 2. On May 19, 2020, M1 approached her as she was dropping off lunch to a coworker and started yelling at her to “go to work.” M1 radioed another supervisor (“S2”) and asked, “where is [Complainant] supposed to be.” 3. On June 7, 2020, someone left an empty soft drink can on her car, indicating that they thought Complainant was “trash,” while her car was parked in close proximity to M1, S1, and S2’s cars. 4. On June 10, 2020, M1 saw her walking to her work station and from the Union Office and yelled, “you’re not supposed to be anywhere other than your machine,” causing her to cry and return to the Union Office. 5. On unspecified dates M1 has acted as through he thinks she should not exist, bullied her, singled her out, and responds to her in a disrespectful manner, saying “I don’t care” or “just go.” The Agency dismissed her complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings 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 the complainant's employment. Thus, not all claims of harassment are actionable. 2021000393 3 As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” Following this precedent, the Commission has repeatedly found that allegations of isolated incidents of harassment are usually not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (Jul. 12, 1996) (allegations that supervisor "verbally attacked" complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign-in log, to be isolated incidents insufficient to state a harassment claim); see also Banks v. Dep’t of Health and Human Serv., EEOC Request No. 05940481 (Feb. 16, 1995) (allegations that on one occasion a supervisor threw a file on the complainant's desk and berated her in a loud voice in the presence of other employees to be isolated incidents insufficient to state a harassment claim). Likewise, it is well established that common workplace occurrences are insufficient to state a harassment claim. Common workplace occurrences include instances where the complainant feels singled out by a supervisor, and held to a stricter standard than other employees. See Gormley v. Dep’t of the Interior, EEOC Complaint No. 01973328 (Feb. 18, 2000) (finding allegations that a supervisor monitored the complainant’s duties, time in and out of the office, treated her more harshly and unprofessionally than other employees to be common workplace occurrences that did not rise to the level of harassment). Similarly, Common workplace occurrences include a supervisor’s questions about an employee’s work duties. See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). Complainant states that when M1 yelled at her, as alleged in Claims 1, 2, and 4, he would stand so close that she felt physically threatened. Her Formal Complaint evokes dramatic imagery such as M1 “walking around in a cane field with spiked whips” to describe her fear and anxiety during these incidents, which she states impacted her existing work-related anxiety. Complainant already felt uncomfortable around M1 prior to these incidents, as she filed a grievance against him for yelling at her about six months earlier. However, there is no evidence in the record that M1 made any physical contact with Complainant. Claims 1, 2, and 4 appear to describe isolated incidents. Moreover, Complainant concedes that during these incidents, M1’s yelling was related to her getting to her work assignment or questioning her assignment, which are common workplace occurrences. Even considering her other claims, her existing discomfort with M1, and Complainant’s repeated observation that M1 failed to ask her what she was doing or where she was coming from before he started yelling at her, Claims 1, 2, and 4, as common workplace occurrences, do not rise to the level of severity or pervasiveness to establish a hostile work environment/harassment. Claims 3 and 5 also fail to describe actions that were sufficiently severe or pervasive to alter the the conditions of Complainant’s employment. Title VII is not a “civility code.” See Oncale v. Sundowner Offshore Serv., 523 U.S. 75, 81 (1998). 2021000393 4 So, even though the actions described in Claims 3 and 5 were hurtful and insulting to Complainant, they do not constitute a hostile work environment or harassment. New Issues Raised on Appeal On appeal, Complainant seeks to amend the instant complaint to include retaliation as another basis for M1’s alleged actions, and raise new allegations discrimination on the bases of retaliation and disability. As neither matter was raised in Complainant’s Formal Complaint, they will not be adjudicated in this decision. If Complainant wishes to pursue these new harassment and retaliation claims 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). Dissatisfaction with Complaint Processing Allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013) Our guidance further provides that complaints about the processing of existing complaints should be referred to the agency official responsible for complaint processing, and/or processed as part of the original complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD-110, supra. On appeal, Complainant alleged that she had repeated difficulties working with the Agency to schedule mediation, prolonging her complaint. In addition, the record reflects that the Agency offered for Complainant and her representative to participate mediation through Zoom, which it cited as a safety precaution in light of the Coronavirus (COVID-19). Complainant disputes the Agency’s rationale, reasoning that in-person mediation was possible to do safely. As the Agency denied the request to mediate in person, and Complainant refused to meet via Zoom, it issued a final decision. Complainant now asks the Commission to remand her complaint for mediation. We decline. Mediation is not mandatory, therefore the Agency’s final decision on the matter was not issued improperly. All of Complainant’s remaining mediation-related concerns reflect dissatisfaction with the processing of her complaint, and must be raised with the Agency in accordance with our regulations. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 2021000393 5 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). 2021000393 6 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’s signature Carlton M. Hadden, Director Office of Federal Operations February 2, 2021 Date