0120141525
11-04-2016
Rosemarie G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rosemarie G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120141525
Hearing No. 440-2013-00118X
Agency No. 4J-606-0138-11
DECISION
On March 6, 2014, Complainant filed an appeal from the Agency's February 5, 2014, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD) which found that Complainant did not demonstrate that she was subjected to a hostile work environment on the bases of age, race, color, and sex and/or reprisal for having engaged in protected EEO activity.
ISSUE PRESENTED
The issue presented in this case is whether the Agency erred in finding that Complainant was not subjected to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-time Sales Services/Distribution Associate at the Agency's Jefferson Park Annex in Chicago, Illinois. On July 15, 2011, Complainant arrived for work and noticed that the Acting Manager's (Manager 1) car was parked across the three remaining spots. This did not allow her to park her car, so she parked her vehicle behind his and went inside. Manager 1 was briefing the clerks, but Complainant interrupted him and asked that he move his car. He indicated that he would move the car when he finished. When Manager 1 entered the parking lot, he saw Complainant taking pictures of his car and he asked her if she had hit his car. She responded that if his car had been parked correctly that would not have been a possibility. According to Complainant, he then said, "You don't tell me how to park my fucking car." Complainant stated that she was not trying to tell him how to park his car. According to Complainant, he then screamed, "Fuck you, you black cunt," and when she asked what he had said, he replied, "you heard me you black bitch." She stated that he screamed in her face and then jumped in his car repeating, "black bitch, and black whore," and drove off quickly almost hitting her with his car.
Complainant reported the incident to the Area Manager, the Chicago Police Department, and the Postal Police. A postal customer who witnessed the incident provided a statement dated July 15, 2011. She wrote that: "I witnessed what occurred between the woman (Complainant) post office worker and a gentleman (Manager 1) in a gray/silver dodge charger. I heard him yelling from his car while I was on my back porch. He used racist and vulgar words that were completely inappropriate." An investigation of the incident was initiated and Manager 1 was transferred to another area post office. Complainant acknowledged that Manager 1 was moved to another facility, but she claimed that he was allowed to return to the Jefferson Park annex at will. Complainant maintained that this was extremely upsetting to her as she did not feel safe when Manager 1 was around.
Complainant also alleged that Manager 1 had used racial slurs and profanity towards her in the past and although it was reported to management, in February 2009, and August 2010, they took no action. Complainant maintained that a coworker witnessed Manager 1 call her a winch and the former union president witnessed Manager 1 use profanity against her. He indicated that he was on the telephone with Complainant and heard Manager 1 "holler and curse her." Also, three coworkers indicated that on August 25, 2010, they heard Manager 1 yell and curse at Complainant while she was talking to her union representative. She maintained that there was no enforcement of the Zero Tolerance Policy as it pertained to Manager 1.
Complainant stated she believed she was treated differently than other employees because Manager 1 never spoke to Caucasian, Hispanic or Filipinos employees the way he spoke to African American employees. She stated her race, color and sex were factors because he called her a "black cunt," "black bitch" and "winch" and that other employees of other races were not addressed with the same language. Complainant also stated that Manager 1's actions grew more hostile after he became aware she had filed an EEO complaint against him.
On December 14, 2011, Complainant filed an EEO complaint alleging that the Agency discriminatorily harassed her on the bases of race (African-American), sex (female), color (Brown), age (45) and reprisal for prior protected EEO activity when:
1. On July 15, 2011, the Acting Manager verbally assaulted her in the parking lot; and
2. On unspecified dates, she reported racial slurs and profanity which were not acted upon or not acted upon to her satisfaction.
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. 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 did not demonstrate that the Agency subjected her to a hostile work environment as alleged.
With respect to Complainant's allegation regarding reprisal, the Agency noted that Manager 1 was listed as the responsible management official in Complainant's 2009 and 2011 complaints, but he was not involved in another of Complainant's previous EEO complaints. The Agency conceded, however, that he would have had knowledge of this complaint because management officials were made aware of EEO cases in their area. Assuming, arguendo, that the actions alleged by Complainant were found to be an adverse action; the Agency argued that her prior EEO activity was too remote in time to provide the necessary nexus needed. Specifically, the Agency explained that Complainant made initial contact on her most recent EEO complaint on November 10, 2010. She filed a formal complaint on March 3, 2011, which was nearly four months before the alleged adverse treatment in July 2011. The Agency maintained that time delays of three to four months are generally considered too remote in time to establish a causal connection. Consequently, the Agency found that Complainant did not establish a prima facie case of reprisal.
With regard to Complainant's harassment/hostile work environment claim, the Agency found that while Complainant and Manager 1 exchanged words on July 15, 2011, the conversation pertained to a parking situation that had nothing to do with her race, color, age, or sex. The Agency explained that Manager 1's version of the incident was different than Complainant's. Manager 1 indicated that Complainant demanded that he move his car, and showed disrespect to him in front of other employees. He stated that he told her that he would be out to move his car when he was finished speaking with the clerks. When he came out to the parking lot, Complainant had parked in such a way that he could not pull out. He indicated that she was taking pictures of the parking lot and he insisted she move her vehicle. Manager 1 testified that she told him to move his "fucking car," and when he told her not to speak to him in that manner; she said "something to the effect that my mother was a 'cunt' and that I was a 'son of a cunt'." After the incident, Manager 1 maintained that he was transferred from the station and has remained away since that time.
Manager 1 indicated that he and Complainant had a very strained working relationship. He stated that their relationship was fine until he made her aware that he did not approve of how she spoke to acting supervisors. He maintained that Complainant would be disrespectful and talked down to acting supervisors and that after he made her aware of this; she began to speak to him in the same manner. He averred that it became worse when he became an Acting Manager. He testified that, prior to the July 15, 2011 incident, Complainant had called the police and reported that he had bumped into her. However, he had witnesses who testified he was sitting at his desk when the alleged incident occurred.
The Agency maintained that after Complainant's allegations regarding the July 15, 2011 incident, Manager 1 was removed as Acting Manager, Customer Services "to minimize any additional potential issues and to properly investigate the alleged harassment." The Agency indicated that while it attempted to investigate the matter, Manager 1 would not cooperate and left the room and Complainant would not speak with the investigator either and therefore Human Resources concluded that it was unable to complete the investigation.
B1, a retired Customer Service Operation Manager, indicated that he visited his stations on almost a daily bases and had frequent contact with Complainant. He acknowledged that Complainant contacted him to report that Manager 1 was talking-down to her but she did not report that Manager 1 had made racial slurs or used profanity to her. B1 maintained that he conducted a brief investigation and determined that Manager 1 was only addressing work related issues. B1 also stated that he brought them together and they mutually agreed to try to get along and that there were no further issues reported.
Among other things, the Agency maintained that if Manager 1 "did call her a 'black bitch' or 'black cunt' this would be evidence that the alleged harassment occurred because of her color and sex as the two terms are commonly used for females." The Agency further found that, even assuming Complainant's account of the incident was accurate, Manager 1's actions would not have risen to the level of severe or pervasive conduct that created a hostile, abusive, or offensive work environment or that unreasonably interfered with Complainant's work performance. Although Complainant indicated that she was off work for three months following the incident, the Agency found that the conduct at issue would not have substantially affected the work environment of a reasonable person.
The Agency maintained that despite Complainant's attempt to expand this one incident into a hostile, abusive, or offensive work environment or one which unreasonably interfered with her work performance, the fact remained that the incident was fleeting in nature, and did not come anywhere near the level of severity or pervasiveness necessary to meet this requirement.
Assuming for the sake of argument only that Complainant established elements 1 - 4 of a harassment claim, the Agency maintained that it reassigned Manager 1 to another station following the July 15, 2011, incident and conducted an investigation. The investigation was concluded without a finding due to Complainant's failure to respond to numerous requests for interviews regarding her allegations. Therefore, the Agency maintained that there was no basis on which to impute liability to the Agency.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the Agency erred in finding that she was not subjected to reprisal. Complainant maintains that her prior EEO activity involved Manager 1 so he was fully aware of her allegations against him. Moreover, she explains that she was still pursuing her prior EEO activity at the time of the instant complaint arose. Complainant also maintains that she established that she was subjected to discriminatory harassment and a hostile work environment. Complainant also asserts that Manager 1 was her supervisor and thus the harassment was exacerbated. Finally, Complainant asserts that the Agency should be held responsible for the discriminatory harassment because management knew about Manager 1's prior conduct but did not take appropriate corrective actions.
In response, the Agency contends, among other things, that Complainant did not establish her claims on any bases, and reiterates the findings set forth in the FAD.
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, 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 parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
At the outset, we find that the Agency erred in finding that Complainant did not establish a prima facie case of reprisal. Although Complainant filed an EEO complaint approximately 4 months before her altercation with Manager 1, he was involved in her complaint. Given that this was an ongoing matter, we find it reasonable to conclude that the 4-month delay was not so remote in time that a nexus could not be established. We do not find any persuasive evidence that Complainant established a prima facie case of age discrimination, however. Complainant presented no evidence regarding what role her age played in this matter.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). 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 humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) that she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. By way of contrast, in the case of co-worker 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 show that it took immediate and appropriate corrective action. Id.
Upon review, we find that the preponderance of the evidence and the totality of the circumstances do not indicate that Complainant established her claim that she was subjected to a hostile work environment based on sex, color, race, or reprisal. With regard to Complainant's claim of hostile work environment, we make the following determinations:
I. Elements 1, 2 and 3 -- Unwelcome Conduct based on Sex, Race, Color and Reprisal
Regarding element 1, the record is undisputed that Complainant, a Black, female with prior EEO activity, is a member of these statutorily protected classes. Regarding elements 2 and 3, we find the record indicates that on July 15, 2011, Complainant was verbally accosted by Manager 1 when he made references to Complainant's sex and race and color in the parking lot by calling her a "black bitch," and a "black cunt." Our conclusion is based on Complainant's testimony, which was corroborated by a disinterested witness. We also find it reasonable to conclude that but for Complainant being a black woman, Manager 1 would not have made these comments. Notwithstanding the above, however, we find no persuasive evidence that Manager 1's comments on July 15, 2011 were somehow related to Complainant's prior EEO activity given that there was no mention of her EEO related activity.
II. Element 4 -- Unwelcome Conduct Sufficiently Severe or Pervasive
Regarding element 4, in determining whether an objectively hostile or abusive environment existed, the trier of fact should consider whether a reasonable person in the Complainant's circumstances would have found the alleged behavior to be hostile or abusive. Harris, 510 U.S. at 21. Also, the trier of fact must consider all of the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.2
While there is no question that Manager 1's comments were inappropriate and unacceptable in the workplace, we find that the July 2011 incident was not sufficiently severe, as a matter of law, to establish a claim of hostile work environment harassment. 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).
Moreover, we do not find that Manager 1's conduct was sufficiently pervasive to establish element 4. Considering the totality of the circumstances, Complainant, at best, sets forth three incidents taking place over a three year time span, i.e., 2009, 2010 and 2011. We also note the testimony of B1, the retired Customer Service Operations Manager. He stated that he visited his stations on almost a daily bases and had frequent contact with Complainant. He stated that it was well known that Complainant and Manager 1 had a strained relationship, but noted that although Complainant reported that Manager 1 was talking-down to her, she did not report that he had made racial slurs or used profanity to her. According to B1, he conducted a brief investigation and determined that Manager 1 was only addressing work related issues. B1 indicated that he brought them together and they agreed to try to get along and that there were no further issues reported to him. Based on the above, we do not find that Complainant has established that Manager 1's conduct affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment.3
CONCLUSION
After a careful review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because Complainant did not establish element 4 of her harassment claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
_11/4/16_________________
Date
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 We note that sex-based harassment -- that is, harassment not involving sexual activity or language -- may give rise to Title VII liability if it is "sufficiently patterned or pervasive," and directed at employees because of their sex. See EEOC Policy Guidance on Current Issues of Sexual Harassment, No. N-915-050, at Guidance, � C. (Mar. 19, 1990).
3 We also find no persuasive evidence to support Complainant's claim that she missed three (3) months of work due to Manager 1's conduct on July 15, 2011.
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