Sulema B., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Mar 1, 2016

0120142954 (E.E.O.C. Mar. 1, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sulema B.,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120142954
Hearing No. 550-2013-00259X
Agency No. 1F957000313

DECISION

Complainant filed an appeal from the Agency’s August 27, 2014 final order 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Operations
Support Specialist at the Sacramento Processing & Distribution Center (P&DC), located in
Sacramento, California. On November 7, 2012, Complainant filed an EEO complaint alleging
that the Agency discriminated against her on the bases of race (African-American), sex (female),
and reprisal (prior protected EEO activity)2 when: (1) on May 19, 2012, a manager (RMO)
exposed his stomach and pulled his pants forward in front of her acting like he would put mail
down his pants;3 (2) on January 31, 2012, RMO placed a ring scanner on his middle finger and
twirled it around at her; (3) on an unspecified date, RMO requested that she come over and
watch as he passed a metal object through his mouth; (4) on October 23, 2012, management held
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 Complainant’s first incident of EEO activity was the current EEO complaint in which initial
EEO contact took place on November 7, 2012.
3 Complainant is not alleging that RMO exposed any body part other than his stomach.

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a meeting with her to discuss her performance and the chain of command; (5) on April 17, 2012,
RMO suggested that she come to operations to supervise under him; (6) on an unspecified date,
she was instructed not to speak to another supervisor about her problems; (7) on an unspecified
date she was advised to request a different work shift; and (8) on February 15, 2013, she was
approached by RMO who followed her around the Postal Automated Redirection System
(PARS) operation asking her questions about the operation.

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.
When Complainant did not object, the AJ granted the Agency’s December 4, 2013 motion for a
decision without a hearing and issued a decision on August 19, 2014. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove
discrimination/retaliation as alleged. Complainant filed the instant appeal without submitting
any arguments or contentions in support.

UNDISPUTED FACTS

RMO testified that he became aware that Complainant was offended by his spinning a scanner
on his finger on January 31, 2012, when informed by another supervisor (S1). He further stated
that he did not learn that Complainant filed an EEO until around February of 2013, when he was
contacted by the EEO Counselor. RMO further testified that S1 told him only that Complainant
was offended and did not mention that she thought it was because of her race or sex.

RMO denies ever exposing his stomach to Complainant or pulling his pants forward acting like
he would put the mail down his pants. RMO does admit that he passed a paperclip through a
tongue piercing. However, he denies calling Complainant over to watch and recalls another
employee in the group he was standing with doing so.

RMO’s supervisor (M1) has no recollection of responding in any way to RMO's twirling of a
scanner on his finger. S1 testified that she did not see RMO twirl a scanner and could not hear
what, if anything, RMO said at the time of the discussion about using a scanner.

RMO testified that on October 23, 2012, he asked Complainant to do an Electronic Mail Input
Request, which is part of the normal processing of mail. Complainant responded by saying that
RMO should not tell her what to do. RMO testified that he explained that he was not telling her
what to do but asking for her assistance. He stated that Complainant's attitude was very
unprofessional.

Another manager (M2) testified that he called a meeting with RMO, Complainant, and another
supervisor (S2) to discuss the October 23, 2012 exchange between RMO and Complainant,
regarding RMO’s request that Complainant do an Electronic Mail Input Request. M2
characterized Complainant's response as a failure to follow RMO’s instructions. Complainant

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was not disciplined for the incident. RMO denies ever asking Complainant on April 17, 2012, or
at any other time to work under his supervision.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other
words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”).

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if
it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may
properly consider issuing a decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty v. Dep’t of Def.,
EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one
party without holding a hearing unless he or she ensures that the party opposing the ruling is

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given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive
statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a
statement, and (4) the chance to engage in discovery before responding, if necessary. According
to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing
summary judgment] has not had the opportunity to discover information that is essential to his
opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2)
(suggesting that an administrative judge could order discovery, if necessary, after receiving an
opposition to a motion for a decision without a hearing).

Up review of the record, we agree with the AJ’s findings and conclusions. Specifically, the AJ
notes that these episodic incidents cited by Complainant occurred over a period of 13 months and
mainly involved Complainant's interpersonal conflicts with RMO. While Complainant cites
three episodes involving bazaar, unprofessional, and crude behavior on the part of RMO during
this 13-month period, specifically, the pants, ring scanner, and paperclip incidents, none of them
included sexually or racially explicit overtones. The AJ further concludes that pulling his pants
out to feign his storage of mail therein reflects gross behavior on the part of RMO; however the
AJ notes that there is no evidence that this was more than a single occurrence and even the fact
that RMO's belly was briefly exposed renders it no more than one crude act that, on its face,
would not affect the conditions of employment for a reasonable employee.

Additionally, the AJ notes that there is no evidence that RMO at any time touched Complainant
inappropriately or otherwise made lewd and lascivious overtures to her. The AJ, therefore,
concludes that even accepting Complainant's allegations and interpretations at face value, they
do not constitute harassment because, when examining all of the circumstances alleged,
including the frequency of the conduct; its severity; whether it was physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interfered with
[Complainant's] work performance," she is unable to show that these episodic incidents and
exchanges could be characterized as abusive, severe or pervasive, or that they affected a term or
condition of her employment.

We agree with the AJ and note that aside from Complainant’s bare assertions, the record is
devoid of evidence to substantiate the allegations despite the fact that several employees were at
or near the events in question. We also note that RMO denies the allegations.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the AJ’s decision in favor of the Agency
without a hearing.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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.

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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

March 1, 2016
Date