[Redacted], Jenee W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Apr 18, 2022

Appeal No. 2021003390 (E.E.O.C. Apr. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jenee W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021003390 Hearing No. 410-2018-00393X Agency No. 4K-300-0029-18 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 26, 2021, 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. At the time of events giving rise to this complaint, Complainant worked as a Distribution Window Clerk at the Agency’s Conyers Post Office in Conyers, Georgia. On January 19, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discriminatory harassment on the bases of race (African American), sex (female), and in reprisal for prior protected EEO activity, when: 1. on May 22, 2017, after reporting that a coworker (CW1) sent Complainant an obscene text message while off the clock,2 which Complainant believed to be sexual harassment, 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. 2021003390 2 she was subsequently harassed by coworkers and management officials failed to properly address the matter; and 2. on October 31, 2018, Complainant was forced to retire from the Agency (constructive discharge).3 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that CW1’s conduct unreasonably interfered with Complainant’s work performance because she became emotionally distraught, sought medical help, and eventually left her job. However, the AJ determined that Complainant did not show that the Agency failed to take corrective action. In fact, the AJ found that the record demonstrated that the Agency took immediate and appropriate action. Specifically, upon notification of the incident, the Agency immediately placed CW1 on Emergency Placement, conducted an investigation, and determined that the message was not meant for Complainant. The AJ also found that Complainant did not establish her retaliatory harassment claim because she was unable to prove that any subsequent action was due to her protected EEO activity. The AJ concluded that summary judgment in the Agency’s favor was appropriate. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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. 2 The message included an explicit photo of CW1 captioned, “want some of this baby.” CW1 explained that he meant to send the message to another person and once he realized his mistake, he apologized to Complainant. Report of Investigation at 122, 34, 393. 3 We note that claim 2 was accepted as an amended claim during the hearing process, but it is not clear why the Administrative Judge did not address the claim in her decision. However, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not provide arguments for this claim; as such, we will not address it in the instant decision. 2021003390 3 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). In order 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 she 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. Here, however, Complainant has failed to establish such a dispute. Through her attorney, Complainant does not argue that there were any genuine disputes of material facts and a review of the record does not reveal any such disputes of material facts. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Complainant avers that the AJ erred in finding that Complainant failed to prove that the Agency took appropriate corrective action. Specifically, Complainant disputes that she was informed of the results of the Agency’s investigation into CW1’s conduct. Complainant also claims that she was required to report to CW1’s work location when it was short-staffed and CW1 returned to Complainant’s work location in January 2018. However, the record shows that the Agency took immediate and appropriate corrective action. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep’t Of Air Force, EEOC Request No. 05920194 (July 8, 1992). Complainant confirmed that CW1 was placed on immediate Emergency Placement and the Agency investigated Complainant’s complaint within two weeks of her complaint. When CW1 returned to work, he was placed in another location and did not work in Complainant’s building. ROI at 123, Complainant Deposition at 14. While Complainant expressed her discomfort with being near CW1, she did not claim that CW1 interacted with her since the incident or that CW1 subjected her to any additional harassing conduct. As such, we find that the AJ appropriately found that the Agency took immediate and appropriate action to address CW1’s conduct to stop the harassment. 2021003390 4 Complainant also asserts that the AJ erred in finding that the other coworker harassment was not based on Complainant’s protected EEO activity when three coworkers began to threaten and harass her for reporting CW1’s harassment. For example, another coworker (CW2) stated to Complainant, “don’t make me come up there and whoop ass” on June 21, 2017, and in October 2017, CW2 asked Complainant, “are you’ll talking about me? You don’t know who you’re messing with!” Complainant added that she reported the harassment to a Human Resources Manager (HRM) on November 7, 2017. ROI at 131-3. A review of Complainant’s letter to HRM shows that she only made broad assertions of harassment, without any details of the allegedly harassing conduct. ROI at 230. We find that Complainant’s evidence supports the AJ’s conclusion that the record did not establish that Complainant was subjected to harassment in reprisal for reporting CW1’s harassment. Complainant also claimed that she was subjected to sarcastic comments and nasty remarks about CW1 from August 2017 through October 2017; and that she reported the harassment to the Postmaster in August 2017. ROI at 133-4. However, even assuming, arguendo, that the incidents occurred as alleged by Complainant, and that they were based on her protected EEO activity, the Postmaster stated that he was unable to follow up because Complainant did not provide names, dates, or times of harassment by other employees. ROI at 193. Complainant corroborated the Postmaster’s statement indicating that she was “too distraught” to identify the coworkers. ROI at 134. While Complainant argues that the Agency failed to address her complaints of retaliatory harassment from her coworkers, we find that the evidence shows that Complainant did not provide sufficient details for the Agency to take further action. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2021003390 5 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. 2021003390 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 April 18, 2022 Date