Almeta W.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 30, 2020

2020002477 (E.E.O.C. Sep. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Almeta W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020002477 Hearing No. 480-2019-00804X Agency No. 4F-900-0073-19 DECISION On February 4, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 23, 2020 final action concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Carrier Technician at the Agency’s Foy Station in Los Angeles, California. On March 14, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American), sex (female), color (black), age (over 40), and in reprisal for prior EEO activity (unspecified) when: 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 2020002477 1. on December 6, 2018, the Manager Customer Services instructed her to get off her cell phone when Complainant took an emergency call from her sister; 2. on December 6, 2018 and other dates, the Manager Customer Services sexually harassed her when he stared at her in an inappropriate way and he admitted that he watches her; 3. on April 20, 2019, she was instructed to punch off the clock before she moved her vehicle from the postal parking lot; 4. on May 15, 2019, she was given an Investigative Interview concerning an Observation of Driving Practices conducted on May 13, 2019; and; 5. between April 29, 2019 and May 15, 2019, she became aware that her manager had stated that there were four “bad apples” that they needed to get rid of, and that he identified her as one of the “bad apples.” After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the case issued a Notice of Proposed Summary Judgment on December 4, 2019. Complainant responded to the Notice of Proposed Summary Judgment. On January 14, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. The Agency thereafter issued the instant final action implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. However, we have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). 3 2020002477 Here, Complainant failed to establish a genuine dispute that required a hearing. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To prove a harassment/hostile work environment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her disability. Only if Complainant establishes both of these elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). During the relevant period Complainant was a Carrier Technician at the Agency’s Foy Station in Los Angeles, California. In October 2018, she was assigned a new Manager Customer Service (Manager). Regarding claim 1, Complainant asserted that on December 6, 2018, the Manager instructed her to get off her cell phone when she took an emergency call from her sister. The AJ noted that on the day in question, December 6, 2018, while “on the clock,” Complainant took a personal call on her cell phone while she was loading mail. Complainant spoke on the phone for approximately 10 minutes. A named supervisor (supervisor) notified the Manager and they both confronted Complainant. The Manager instructed Complainant to get off the phone. Complainant responded that the call related to a family emergency. She explained the nature of the emergency. However, the Manager continued to tell Complainant to get off the phone. He gave Complainant the option of going home to attend the emergency. The record reflects that Complainant left work that day. The AJ noted that on the same day, Complainant initiated EEO contact against the Manager. On January 24, 2019, a mediation session was held between Complainant, her union representative, Manager, and a supervisor. Complainant formalized her complaint on March 14, 2019. The Manager (Hispanic, brown male) stated that while he does not recall the whole conversation other than Complainant "was instructed to get off her phone. [Complainant] stated that it was an emergency and she was given the option to go home and attend to her sister.” Regarding claim 2, Complainant alleged that on December 6, 2018 and other dates, the Manager Customer Services sexually harassed her when he stared at her in an inappropriate way and he admitted that he watches her. Specifically, Complainant alleged that the Manager told her that he was watching her. She stated that she felt the Manager was “undressing her with his eyes,” and she told him she was going to file an EEO complaint. 4 2020002477 The Manager denied Complainant’s allegations. The Manager asserted that on December 6, 2018, the supervisor was next to him when they instructed Complainant to get off the phone, and that he had no comment “to a false and fabricated allegation” by Complainant. The supervisor (African-American female, over 40) asserted that she did not hear the Manager making inappropriate comments to Complainant. She further stated that Complainant had a tendency take offense “whenever she is addressed if she is not following instructions.” Regarding claim 3, Complainant alleged that on April 20, 2019, she was instructed to punch off the clock before she moved her vehicle from the postal parking lot. The AJ stated on April 29, 2019, the Manager, in a tone of voice that Complainant found hostile, ordered Complainant to clock out and move her personal car from the parking lot closest to the facility to the employee lot further away. Complainant moved her car but the record reflects that she did not clock out to do so. At some point in the past, employees, including Complainant, were indeed allowed to park their cars in the closest parking lot, to clock in, and then while on the clock to move their cars to the farther parking lot. The AJ noted, however, on April 20, 2019, management informed staff that the policy was changing, and that most employees had to park in the farther employee lot, and could not clock in and then move their cars while on the clock. Regarding claim 4, Complainant claimed that on May 15, 2019, she was given an Investigative Interview concerning an Observation of Driving Practices conducted on May 13, 2019. The AJ noted that on May 13, 2019, the Manager conducted a street observation during which Complainant pulled away from a curb and made a right turn without using her turn signal. During the observation, Complainant also did not use a satchel. On May 15, 2019, a Supervisor Customer Services gave Complainant an investigative interview regarding the May 13, 2019 incident. The incident apparently resulted in a Letter of Warning. Regarding claim 5, Complainant asserted that between April 29, 2019 and May 15, 2019, she became aware that her manager had stated that there were four “bad apples” that they needed to get rid of, and that he identified her as one of the “bad apples.” The AJ noted that a co-worker overheard the supervisor telling the Manager that there were four “bad apples” on the staff that they needed to get rid of, and that Complainant was one of them. Around this time, the union steward also heard management compare Complainant to some of her coworkers. At least two of the coworkers management were comparing Complainant to were younger than her. According to the Manager and supervisor, they maintained that Complainant’s allegations were not true. 5 2020002477 In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination in the context of a harassment claim, and that the responsible management officials clearly provided explanations for the disputed actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her claim that her treatment was the result of her race, sex, color, age, and prior protected activity. Here, the preponderance of the evidence does not establish that the management officials involved were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 6 2020002477 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 September 30, 2020 Date