[Redacted], Willa B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 14, 2021Appeal No. 2020004710 (E.E.O.C. Apr. 14, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willa B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020004710 Hearing No. 541-2019-00138X Agency No. 4E-800-0170-18 DECISION On August 8, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 10, 2020, final decision (FAD) 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales/Services Distribution Associate, P-06, at the Agency’s Templeton Station facility in Colorado Springs, Colorado. On February 20, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when she was subjected to sexual harassment and management failed to take proper action. 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. 2020004710 2 During the investigation into her complaint, Complainant alleges that the following incident occurred: I was at my work-station, with a customer. I was bent over printing a money order, when [________] (name omitted, CW1: male) yelled down the line "Hey., hey, [Complainant’s first name]", I looked over at him. He said, "it looks like you guys are macking". I turned to the customer, I was so embarrassed. I couldn't believe he was saying this. [CW] then said, "it looks like you guys (Complainant and [__________] (name omitted, CW2: male)) are having sex, because of the way she is bent over". [CW1] then approaches [CW2] and says., "You dawg, you". He then began repeating., "it really looked like sex the way she was bent over. . . . After being harassed by 2 co-workers, [CW1 and CW3, male] and reporting harassment to my supervisor. The harassment continued. I felt abandoned. I informed management/Supervisors of the harassment and they disregarded my complaints. . . . Management took my harassment complaint lightly. Management did not respond promptly and appropriately. I know this because right after the sexual harassment, I immediately informed management, yet was to return to the same work area as my harasser. Complainant further averred that CW2 and a postal customer witnessed the incident. CW2, however, declined to submit an affidavit. In addition, Complainant described the following incidents that she believed contributed to a hostile work environment based on sex: Aug 10: 1 noticed my radio at station 3 missing [sic]. I asked [CW1, another coworker (CW3: male) and C2] if they knew where it was, they all said no. I asked [a supervisor (S1: male)] to pull up video, [CW1] told me there was no need because [S1] had seen him [CW1] take it. -Aug 14: [CW1] told me that the radio was long gone and that he had thrown it in the trash. All the time smiling with a smug look. -Aug 18:1 put in for a no lunch. Before I left for the day, I checked the list to make sure. On the "No-Lunch" page, [CW1] had written a statement saying "Lunch taken at 12:20" next to my name. I was not near [CW1] and was working in the box section when I went on a break. A lunch was put in and I was told, it was later deleted. -Aug 19: I found 2 bolts in the tires on my vehicle. Odd, because I don't take my vehicle in places where these type of bolts would be. -Aug 25: While throwing parcels in the 18 zone, [CW1] came over and plugged his radio in near the scanner station. I told him that there was a radio obviously already playing. [CW1] turned his on smiled and walked away. I unplugged his radio to avoid having to turn ours up. [CW1] came back over, plugged it back in and yelled that he'd just make his louder, he proceeded to turn his up, and walked away from our work area again. -Sept 1: I asked station manager, [M: male] if I should come in early on Sept 4th, being that the work load is extra heavy after a holiday. He said yes and the earlier 2020004710 3 I come in, the better. He agreed to a straight 8 hour shift. While I was closing my window down, [CW3] came up and said “we need you to stay until 12:30.” I let him know that this was approved through [M]. He went to the back. While I was clocking out for the day, [CW3] pointed at me and demanded a normal schedule for the next day. -Sep 12: I had just finished throwing parcels when, [CW3] demanded that I needed to log off station 3 so he could put in a new printer. I logged off and continued helping customers. Before he finished, he motioned to [CW1] to log on to station 3. I asked why he was logging on to this station, when I was obviously was already set up on it. [CW1] told me I wasn't set up on it anymore. He moved my stamps and said this is now my station. He smiled and laughed at [CW3] who did the same. They moved my stamps somewhere else. I went to notify the supervisor [S2: female] of the now [sic] conflict. [S2] attempted to have him move since I was already set up at that station. -Sep 12: Approximately 12:15, [S2] asked me if I was on a lunch or break because [CW1] told her I had been outside since 11:30. I had been doing the notified's [sic] up to about 12:00 and then took a break. [S1] saw me and told [S2] such. -Sep 12: Before I left for the day, [CW3] stated that he "is my supervisor and that I will listen to him or else, especially with all you're going through." At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that Complainant failed to establish that the alleged actions were sufficiently pervasive and/or severe to constitute harassment in violation of Title VII, and further found that management acted appropriately in addressing the actions. The instant appeal followed. ANALYSIS AND FINDINGS 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, at Chapter 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 2020004710 4 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). In considering whether any of the above actions described by Complainant, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, 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." The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that the actions complained of were insufficiently severe and/or pervasive to create discriminatory changes to the terms and conditions of Complainant’s employment. As an initial matter, we find that, with the exception of the single incident where CW1 shouted out that it looked like Complainant was having sex with a coworker, the actions neither involved nor were based on Complainant’s sex. While the incident involving CW1 was clearly offensive, it was a single isolated incident that, by itself, did not create a hostile work environment sufficient to violate Title VII. Moreover, Complainant averred that S1 did conduct an investigation into her allegations, but that she was never notified about the outcome. The Station Manager averred that as soon as Complainant notified him of the incidents “I immediately went to witnesses to gather statements,” and instructed S1 conducted a thorough investigation. 2020004710 5 The Station Manager further averred that CW1 has not worked in the facility since shortly after the alleged incidents, having been placed on administrative leave2 and then returned to a working status at a different location. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination occurred, and we AFFIRM the FAD. 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. 2 It appears from the record that CW1 was, by chance, placed on administrative leave during this period for another matter. 2020004710 6 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. 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 14, 2021 Date Copy with citationCopy as parenthetical citation