[Redacted], Brenton W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Mar 12, 2020

Appeal No. 2019004236 (E.E.O.C. Mar. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brenton W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2019004236 Hearing No. 440-2018-00290X Agency No. 4J-606-0145-17 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated March 14, 2019, finding no discrimination regarding his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician, Q-02, at the Agency’s Graceland Carrier Annex in Chicago, Illinois. On December 14, 2017, Complainant filed his complaint alleging discrimination based on sex (male) when on September 6, 2017, he was sexually harassed by a coworker and management did nothing. 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. 2019004236 2 Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On January 30, 2019, the Agency filed a Motion for Summary Judgment and Complainant filed a response to the Agency’s motion opposing a decision without a hearing on February 13, 2019. On March 5, 2019, the AJ issued a decision without holding a hearing, finding no discrimination. Therein, the AJ adopted the Agency’s statement of undisputed facts in the Agency’s motion. The Agency’s final order implemented the AJ’s decision. Complainant appeals the Agency’s final order. 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he 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 or his 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, in other words, did the agency know or have reason to know of sexual harassment and failed to take prompt remedial action. 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). 2019004236 3 In the case of coworker harassment, as here, an agency is responsible for acts of sexual harassment in the workplace where the agency knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1614.11(d); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). In this case, Complainant alleged that on September 4 - 5, 2017, he received unwanted explicit sexual text message from his coworker’s (CW1) phone number.2 On September 6, Complainant reported the incident to his first level supervisor (S1). S1 immediately contacted his supervisor (S2), the Office of Inspector General (OIG), and the Chicago District Labor Relations Department in accordance with the Agency’s harassment policy. The next day on September 7, 2017, S1 further initiated the Initial Management Inquiry Process (IMIP) and interviewed both Complainant and CW1. During the interview, S1 stated CW1 denied any knowledge of the text messages identified by Complainant. Despite this, S1, as a form of Pre-Disciplinary Interview, had a stern conversation with CW1 about the seriousness of the incidents and told CW1 to stay away from Complainant and Complainant’s mail delivery route. S1 further warned CW1 that he would treat any further inappropriate conduct towards Complainant as a serious infraction that would warrant discipline, up to and including removal. S1 subsequently learned that Complainant reported the same incident to the OIG and closed his IMIP as inconclusive and took no further actions. S1 also informed Complainant of this. S1 stated that he was unaware of any further issues between Complainant and CW1. Complainant reported no further issues concerning CW1 to S1. On September 12, 2017, the OIG received a hotline complaint from Complainant regarding CWI. The OIG conducted a preliminary investigation into the matter by discussing it with S1. As S1 took the appropriate steps to address the matter, the OIG determined that it did not warrant an OIG investigation. The OIG thus referred the matter to the Chicago District for any further actions, if necessary. On December 26, 2017, the USPS Inspection Service (USPIS) Threat Assessment Team discussed the OIG complaint made by Complainant against CW1. After an investigation, the USPIS Inspectors determined that no credible threat or act of physical violence occurred. Complainant reported no further incident related to CW1 after his September 6, 2017 report of sexual harassment. CW1 moved to another postal facility on March 17, 2018. Complainant had no further contact with CW1 since CW1 left the Graceland Annex. 2 Complainant indicated that he also received similar less explicit sexual text messages from an unknown sender on September 4 - 7, 2017. 2019004236 4 Regarding Complainant’s claims concerning his interactions with CW1 in 2016 and in March 2017, i.e., CW1 bumping into him or making aggressive statements, S1 stated that he was not aware of and did not notice anything out of the ordinary. The AJ found that these prior incidents were insufficient to put the Agency on notice of a hostile work environment based on sex rather than a personality conflict between two coworkers. Thus, the AJ found those incidents did not trigger any obligation on the part of the Agency to address sexual harassment allegations. In the present case it is undisputed that the Agency had a policy against harassment, provided training to its employees, and communicated to all employees, including Complainant, the ways to report such conduct. After a review of the record, we find that the record is adequately developed and there are no material facts in dispute. We also find that the AJ properly found that the complaint was properly decided without a hearing and that the AJ properly adopted the Agency’s statement of undisputed facts. Upon review, the AJ found, and we agree that after receiving notice, the Agency took immediate and appropriate corrective action concerning Complainant’s sexual harassment claim against CW1. Thus, we find that there is no basis for imputing liability to the Agency for the alleged sexual harassment. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2019004236 5 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. 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 12, 2020 Date