Jeannie T.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 21, 2020

2020003944 (E.E.O.C. Sep. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeannie T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003944 Hearing No. 510-2019-00178X Agency No. 4G-330-0312-18 DECISION 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 March 11, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant was employed as a Full Time Sales, Services/Distribution Associate at the Agency’s Hialeah-Bright Station in Hialeah, Florida. On June 30, 2018, Complainant filed a formal complaint alleging that S1, Supervisor, Customer Services; S2 and S3, Managers, Customer Services; S4, Manager, Customer Services Operations; and A5, Postal Inspector, intentionally subjected her to harassment based on race (African American) and sex (female) when: in October 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. 2020003944 2 2013 and May 11 and 18, 2018, C1, a coworker, made threatening and derogatory comments to her and stalked her at work and management did not reprimand him.2 According to Complainant, in October 2013, she first told her union steward that for several weeks C1 (white/male) had been making derogatory comments to her. She maintained that he told her she was “a piece of s__t,” that he “hope[ed] [her] leg and arm [fell] off,” and that he “would not piss on [her] if [she] were on fire.” Complainant also stated that C1 would spit on the ground when she would walk by going to lunch or the dock and he would say things like she was the “scum of the earth,” and “f__k you.” Complainant also alleged that C1 would stare at or watch her, yell things at her on the workroom floor, and has talked to other employees about her to such an extent that the employees asked him to leave her alone. Complainant stated that C1 apologized to her for his conduct, but that she did not accept his apology, and reported him to S1, S2, and S3. Complainant stated that she was emotionally hurt and disrespected by C1’s conduct and asked to be transferred from the station in 2013, but her request was denied. In October 2013, a Credible Threat Report was initiated based on Complainant’s allegations. Complainant stated that the union and the Inspection Service were notified, and both she and C1 were interviewed. According to Complainant, S4 told her that she was not to be left alone with C1; however, she has been left alone with him for many years with no other supervisor or manager in the morning. Complainant stated that she has not spoken to C1 since the summer of 2013. On May 11 and 18, 2018, Complainant stated that C1 told her “f__k you.” She maintained that she did not respond to his remark and went to the restroom crying. According to Complainant, she reported the remark to S1, who she claims heard the comment. Complainant stated that, on May 23, 2018, she made another Credible Threat Report, but that no action was taken despite S3 informing her that he would get back to her. Complainant stated that she was again told that they would have someone in the building with her and C1 in the mornings. S1 stated that in 2013, S2 investigated Complainant’s allegations against C1. She also stated that she reported the May 2018 incidents, raised by Complainant to S2. She indicated that an Investigative Interview was conducted by S2 and S3. According to S1, C1 denied the allegations raised by Complainant. S1 stated that while no corrective action was taken against C1, in 2018, an agreement was reached between S2 and Complainant to have a supervisor in the building so that she would not be alone with C1. S1 was the supervisor designated to be in the building. S2 stated that when she received Complainant’s concerns regarding C1 in October 2013, she investigated and requested that Complainant complete a Credible Threat Report. 2 Although Complainant maintained in her affidavit that she reported C1’s comments to management on 10 different occasions since 2013, she only discussed the October 2013, and May 2018 incidents. 2020003944 3 She maintained that she also informed S4 of the complaint. S2 maintained that no corrective action was taken against C1 because the Postal Inspectors determined that it was a “she said/he said” situation. In May 2018, S2 stated that she and S3, following Complainant’s allegations regarding C1, met with Complainant and entered into an agreement to have a supervisor in the building, so that she would not be alone with C1. She maintained that, prior to that agreement, there was no supervisor scheduled to be in the building while both employees were together. S3 stated that he was not aware of Complainant’s October 2013 allegations, but Complainant informed him that S4 had been made aware. He stated that he became aware of her May 18, 2018, allegation when she filed a Credible Threat Report on May 22, 2018. S3 stated that he responded by meeting with Complainant to discuss her report. He stated that he immediately instructed S1 to report early to avoid having Complainant alone with C1. S3 stated that the change took place on May 23, 2018, and Complainant was never left alone with C1 afterward. S3 maintained that the Inspection Service concluded that it was not a credible threat and was a “He said, she said” situation. He also indicated that they did not receive any written report, but Complainant was verbally informed of the outcome by the Inspection Service. S4 stated that, as to the October 2013 claim, he and station management met with both employees. He noted that C1 apologized and the issue was resolved with no further action. S4 denied ever telling Complainant that she and C1 would not be left alone in the office with respect to the October 2013 incident. A5 stated that since no verbal or physical threats were made by either party, the incident was referred to management to handle. 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 initially requested a hearing, but subsequently withdrew her request. 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. Complainant filed the instant appeal. On appeal, Complainant reiterated her assertion that she has not been allowed to transfer and seems to allege that C1’s actions were in violation of the Agency’s “Zero Tolerance Policy.” 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 2020003944 4 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”). Complainant, in order to establish a claim of harassment, must show that: (1) she belongs to a statutorily protected class; (2) 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). We find that Complainant did not establish a claim of harassment based on race and sex. In reaching these determinations, the Commission does not condone the conduct attributed to C1 in October 2013 or May 2018, we simply note the lack of any persuasive evidence that Complainant’s race or sex played any role. Consequently, we find that Complainant did not establish elements 2 and 3 of the harassment claim as set forth above. A review of Complainant’s allegations did not indicate that the conduct or remarks allegedly made by C1 in any way referenced or involved her race or sex. As noted by the Agency, “the remarks, even if accepted as factual, were facially neutral, could have been directed to any race or gender group out of anger or any other reason.” The Commission notes that Title VII is not a civility code. Rather, it forbids “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). Complainant, in an attempt to establish that C1’s comments to her were based on her race and sex, stated that in 2011 or 2012, C1 called C2, a Black female employee, “a pig in lipstick”; told Complainant that he was so mad at C2 that he almost called her the “N Word;” engaged in several verbal altercations with a Hispanic female employee; and was involved in a heated argument with S2, a female manager. Assuming, arguendo, that these assertions are accurate and took place as alleged, we do not find that they establish that the comments made to her by C1 were based on her race and sex. Finally, with regard to the matters raised by Complainant on appeal, we note that the role of the Commission here is not to enforce the Agency’s Zero Tolerance Policy, but to determine whether Complainant established that she was subjected to harassment based on her race and sex. Based on the totality of the record, we find that she did not meet her burden. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 2020003944 5 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. 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. 2020003944 6 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 21, 2020 Date