[Redacted], Anna P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2020000310 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anna P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000310 Hearing No. 560-2017-00270G Agency No. 4G-730-0006-17 DECISION On September 11, 2019, 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 August 12, 2019 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 Complainant worked as a Rural Carrier Associate, B-05, assigned to the Moore Branch Post Office located in Moore, Oklahoma. On February 13, 2017, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of sex (female) and in reprisal for prior protected EEO activity 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. 2020000310 2 1. Since June 29, 2016, management failed to properly address her allegations that her immediate supervisor a Customer Services Supervisor (CSS) harassed her both sexually and non-sexually; 2. On July 13, 2016, August 24, 2016, and other dates, CSS sent Complainant inappropriate text messages; 3. On July 29, 2016, CSS sexually assaulted Complainant in the restroom at the Moore Branch facility; and 4. On October 14, 2016, Complainant became aware that CSS was contacting other facilities and making inquiries about her.2 Text Messages Complainant was hired as a Rural Carrier Associate on April 30, 2016, and initially assigned to the Post Office in Yukon, Oklahoma. Beginning on July 18, 2016, she was assigned to the Moore Post Office to provide assistance there on an as-needed basis. CSS was the supervisor on duty at Moore that day. According to Complainant, CSS started sending text messages to her asking how old she was, whether she had children, and other personal matters. IR 184, 178. In a handwritten statement dated October 8, 2016, Complainant stated that at that point she knew he was flirting, but that after that the messages “got a little more inappropriate.” Complainant also wrote that she found out that CSS was texting inappropriate message to other female employees as well. IR 248-51. One text exchange between Complainant and CSS, dated August 24, 2016 is included in the record. IR 258-59. There was another exchange that was extremely explicit sexually. However, it did not contain any identifiers, was undated and Complainant herself appeared not to know who she was texting with. Complainant informed the individual that she would turn the texts over to the police if they continued without telling her who the person was. IR 261-62. The remainder of the text messages appear to be work-related and talking about children. Complainant admitted in one of these exchanges that she was a single mom while CSS intimated that he had marital issues. At one point, CSS admitted that supervisors were not supposed to be texting employees, but Complainant admitted that it did not bother her either way. IR 263-276, 280-288. Complainant reported that CSS stopped sending her inappropriate text messages on August 4, 2016. IR 178, 253 2 The Agency dismissed claims (1) - (3) as discrete acts finding they were untimely raised with an EEO Counselor. The Agency determined, however, that the claims would be considered as part of Complainant’s overall hostile work environment and sexual harassment claims. The EEOC Administrative Judge (AJ) assigned to the matter upheld the Agency’s processing of these claims. The Commission does not find any basis to disturb the AJ’s decision in this regard. 2020000310 3 The July 29, 2016 Bathroom Incident Complainant averred that on July 29, 2016, CSS ordered her to accompany him to the ladies’ restroom. She further claimed that CSS grabbed her arm and forcibly pulled her into him, and that she repeatedly repeated “no,” and eventually exited the restroom. She characterized the incident as assault and battery. IR 174, 176, 253. CSS’s Inquiries About Complainant at Other Facilities Complainant alleged that she was contacted by a Rural Carrier Associate at the Lexington Post Office who had informed her that she had been contacted by CSS. IR 180. She stated that this individual had informed her that CSS revealed that she, Complainant, had filed a sexual harassment claim against him, and that the matter would be investigated by another supervisor who was a friend of CSS’s. Complainant further claimed that management never gave a reason for CSS contacting other postal facilities about her, and that CSS was attempting to harm her reputation. IR 180-81. The Rural Carrier Associate at Lexington did not provide an investigative affidavit. IR 384-91. Internal Investigation and Resulting Discipline of CSS: Complainant claimed that she reported the texting and bathroom incidents to a Rural Carrier Supervisor and to her Union Representative on October 6, 2016. She also alleged that management made no response. When asked about whether she notified her supervisor, Complainant replied that she was a new probationary employee, that she was afraid, and that she was unsure of her rights. IR 175-76, 179, 253. As previously noted, another Supervisor, who had since retired, conducted a fact-finding inquiry regarding Complainant’s allegations. She questioned CSS, Complainant, and the Carrier who had allegedly talked to CSS around October 2016. She conducted her inquiry on October 13 and October 14, 2016, and prepared a written report summarizing her conversations with those individuals. She reported CSS’s statements that Complainant would “hang out” at his desk when she finished work and would discuss family issues and divorce, and that Complainant was being “flirty.” She also reported that CSS denied asking Complainant for a kiss and physically touching her, and that CSS could not recall telling Complainant that she was “hot.” When the Supervisor showed CSS screen shots of the text messages, CSS stated that he did not recall them but that he might have sent them. She also stated that CSS indicated that he could not recall the bathroom incident and vehemently denied touching Complainant or pulling her close to him. IR 440-42. Next, the Supervisor questioned Complainant. She reported Complainant’s statements that CSS began texting Complainant as soon as she arrived at Moore, that Complainant had not reported the texts to the Moore Station Manager because she was afraid that as a probationary employee, she could be fired, and that when she asked Complainant about CSS grabbing her forearm, Complainant appeared to not understand her question and was unable to remember the details of 2020000310 4 the incident. As to why she waited until October 8, 2016, six weeks after the texting stopped before reporting the incidents, Complainant informed the Supervisor that Complainant had originally decided not to report the incidents but changed her mind after several other female carriers reported similar incidents. The Supervisor stated that she again asked Complainant why she did not report anything to anyone from July 18 to October 8, 2016, and that Complainant made the following statements: “It flattered me” “[CSS] is a younger guy that was interested” “He (CSS) was the first person to hit on me in a long time” “…..made me feel good” “Was in a relationship that was not great, just a matter of time before we separated” “[CSS] * * * is married. He just wants fun, no commitment.” The Supervisor reported that she asked Complainant if she had ever asked CSS to stop texting her or that his texts made her uncomfortable, and that Complainant answered “no” to both questions. IR 443-46. Other employees gave statements as well. A Carrier submitted a routing slip dated October 20, 2016, in which this individual reported that she had observed CSS treating Complainant harshly and that during CSS’s last month at the Moore Post Office, his attitude toward Complainant became “downright hateful.” IR 256. Four other female carriers, including the carrier who allegedly told Complainant that she had been later contacted by CSS, reported that they had also received inappropriate text messages from CSS, some of which were also very explicit. IR 289, 291, 447-49, 472-73. On October 26, 2016, CSS was issued a proposed letter of warning in lieu of a 14-day suspension from the Customer Service Operations Manager. Two charges were set forth in the letter” Charge # 1: Inappropriate Conduct: On or about October 11, 2016, evidence was provided of alleged sexual harassment between you and subordinate employees at the Moore Station. On October 13th, an investigation was initiated and was concluded on October 14th. The results of the investigation reveal that you sent inappropriate text messages to a subordinate RCA. When asked if you had sent text messages to the employee regarding a kiss, wanting more, etc., you responded in the negative and/or stated that you could not recall, or words to that effect. When shown the text messages, you stated that you did not recall them specifically but may have sent them. Charge # 2: Failure to Follow Instructions: Relevant to Charge # 1, you failed to follow instructions. Specifically, you were instructed not to have any communication with the employees involved during the investigation. Evidence indicates that you failed to follow those instructions and contacted one of the employees involved. 2020000310 5 IR 474-76. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the IR and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 8, 2019, motion for summary judgment and issued a decision without a hearing on August 2, 2019. In the decision, the AJ found that with regard to her allegation of sexual harassment against CSS, Complainant never reported to anyone in management between June and September 2016 that she was being harassed during that time frame, thereby failing to take advantage of any preventive or corrective opportunities provided by the Agency’s informal process for resolving harassment claims. The AJ further found that once Complainant did report the allegations, management officials were on the scene within one week taking statements and conducting an investigation. Once that informal process had been completed, management had not only disciplined CSS but had also transferred him to a different location. As to incident (4), pertaining to Complainant’s allegation of reprisal when CSS contacted other postal facilities making inquiries about her, the AJ found that Complainant had produced no evidence that the claimed conversation between CSS and the Rural Carrier Associate at Lexington regarding Complainant’s sexual harassment complaint against CSS had ever occurred or that anyone in management had taken action against Complainant because of that alleged conversation. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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. 2020000310 6 Hostile Work Environment - Sexual Harassment To warrant a hearing on a claim of sexual harassment creating a hostile work environment, Complainant must raise a genuine issue of material fact as to whether: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 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. Construing all evidentiary inferences in Complainant’s favor, we find that Complainant is unable to raise a genuine issue of material fact with respect to element (5) of her sexual harassment claim. We note initially that the texts from CSS were offensive to any reasonable person in Complainant’s position. As to the most explicit texts, Complainant’s responses indicate that she did not know who it was from, and it is equally unclear when that exchange took place. While Complainant asserts that the Agency failed to address her allegations since June 29, 2016, the record reveals that she did not report any of the incidents until October 6, 2016, and as soon as she did, the Agency conducted a fact-finding inquiry that resulted in CSS being disciplined and transferred. This ensured that Complainant would not be subject to additional harassment and there was no evidence that any such behavior reccurred. Accordingly, the Commission finds that the Agency took prompt and effective corrective action in response to Complainant’s report of sexual harassment and that there is no basis for imputing liability to the employer. 2020000310 7 Disparate Treatment To warrant a hearing on her disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The Agency would then have to articulate a legitimate and non-discriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To move forward with a hearing, Complainant must raise a genuine issue of material fact as to whether the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Again, drawing all reasonable fact-finding inferences in Complainant’s favor, we find that Complainant is unable to establish a genuine issue of material fact on the issue of pretext. As discussed above, with respect to incident (1), the Agency took immediate corrective action as soon as management was made aware of the incidents. Regarding incident (4), we agree with the AJ that there is no evidence in the record that the alleged conversation between CSS and the Rural Carrier Associate from Lexington regarding Complainant’s sexual harassment claim had ever taken place, or that CSS or any other Agency official took action against Complainant as a result of that conversation. Therefore, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanations for its actions were pretext for sex discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 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. 2020000310 8 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. 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. 2020000310 9 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 March 2, 2021 Date