[Redacted], Larraine D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jul 28, 2022

Appeal No. 2021001822 (E.E.O.C. Jul. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Larraine D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021001822 Hearing No. 530-2015-00357X Agency No. 4C-150-0027-15 DECISION On January 21, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 21, 2020 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Manager of Customer Service Operations, EAS-23 at the Agency’s General Mail Facility in Pittsburgh, Pennsylvania. On April 14, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory hostile work environment harassment on the bases of her race (African American), color, sex (female), and age when, from May 2014 and continuing: 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. 2021001822 2 1. Management berated and belittled her in private and in front of her peers and subordinates; 2. Management threated and screamed at her; 3. Management undermined her position and would not allow her to go to one of her offices; and, 4. Management withheld upward mobility opportunities from her. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. The Pittsburgh Postmaster (“S1”) (Eskimo, male) began his position, and became Complainant’s supervisor, on February 3, 2014. According to Complainant, approximately two months later, in May 2014, S1 began harassing her. In May 2014, Complainant attested she witnessed S1 opening Express Mail without authorization and questioned him about it. Thereafter, in early December 2014, the Office of the Inspector General (OIG) launched an investigation into the matter. On September 15, 2015, S1 was arrested for opening same-day delivery packages. Some of the packages contained money, others were laden with drugs hidden in coffee bags in violation of federal law and Agency regulations. S1 was charged with several criminal offenses, including four counts of witness intimidation for intimidating Complainant and other subordinates. Specifically, S1 was found to have threatened to “kill” them or “ruin” them to prevent their cooperation with law enforcement. On January 23, 2015, S1 was placed on administrative leave and barred from entering postal facilities in the city of Pittsburg. Shortly after S1 was placed on leave, Complainant stopped reporting for duty and took extended medical leave for approximately nine months, from February through October 2015. Regarding claims (1) and (2), Complainant attested that S1 harassed her in the months leading up to his leave from the office by belittling her in private and in front of her peers and subordinates. In one instance, occurring on January 7, 2015, Complainant stated that S1 “rudely interrupted” her during a teleconference call with her subordinates. Complainant described S1’s tone as “stern” and “loud”, noting that he spoke to her as if he was conducting a pre-disciplinary investigation. Further, S1 criticized and berated her for issues at the Oakland post office locations, and when she answered his questions, he continued to drill her as if they were alone on the phone. Complainant felt embarrassed and humiliated and her staff later contacted her to make sure she was alright. 2021001822 3 Complainant’s subordinate, SUB4, corroborated Complainant’s version of the events. SUB4 described S1’s behavior as a “public humiliation” and “completely unprofessional, rude and degrading.” Additionally, SUB4 attested that S1 had previously displayed similar behavior when S1 revealed to SUB4 that he was going to “take [Complainant] down.” In another teleconference call on January 15, 2015, Complainant stated that S1 directed another manager (“C1”) (Caucasian, female) to berate Complainant’s subordinates for their poor performance. Complainant felt the incident was belittling and that C1’s actions undermined her authority in front of her staff. The incident was confirmed by SUB4, who explained that S1 was in the office next to C1 screaming at her to be hard on Complainant’s group as if Complainant did not exist. SUB4 stated that he was “appalled”, as well as “anxious and upset that this was going on again.” With respect to claim (3), Complainant alleged that S1 undermined her position by taking several actions, including removing her authority to make hiring and promotion decisions for the offices that she oversaw. Instead, stated Complainant, S1 allowed C1 to “do all the hiring of CCAs and PSEs” in the city of Pittsburgh. When she questioned S1 about his hiring directives, S1 allegedly replied: “stay in your lane”. Additionally, Complainant claimed that S1 allowed C1 to perform as Acting Postmaster during his absence from the office, but she was not extended the same opportunity. While S1 threatened at least two of her subordinate employees, who were African American, Complainant claimed that he never threatened any of C1’s subordinates. According to Complainant, S1 would not allow her to go to one of her offices. Regarding claim (4), Complainant alleged that S1 withheld her from upward mobility opportunities by arranging detail assignments for her coworkers, but not for her. Similarly, her coworkers were offered positions in the Program and Advanced Leadership Program and she was not. At the conclusion of the investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. On December 11, 2020 the AJ issued a summary judgment decision in favor of the Agency. The AJ determined that Complainant failed to establish a prima facie case of harassment, reasoning that she could not prove that S1’s conduct was taken because of her race, color, sex, or age. With regard to claims 1 and 2, the AJ found there was no evidence that S1 “held [any] animus whatsoever towards Complainant…until Complainant witnessed [him] illegally open drugs in around May 2014.” The AJ added that, “things came to a head when OIG began an internal investigation which confirmed [S1] was illegally opening certain packages containing drugs…”. The AJ pointed out that SUB1 (African American, female) testified that S1 told her that he was going to take Complainant “down” because he thought Complainant would implicate him in the illegal “scandal” relating to opening express mail packages. 2021001822 4 The AJ determined that S1 not only threatened African American employees, but also members outside of Complainant’s protected classes. As for claim 3, the AJ found the record contradicted Complainant’s assertions, including her claim that S1 removed her authority to make hiring decisions. With respect to the allegation that Complainant was not selected to act as Postmaster during S1’s absence from the office, the record showed otherwise. The AJ noted that S1 only designated someone to perform in an acting capacity on two occasions, and on one of those occasions he selected Complainant. As for Complainant’s assertion that S1 threaten two of her subordinates, both of whom are African- American, but never threatened any of C1’s subordinates, the AJ pointed out that Complainant failed to even identify the names or races of C1’s subordinates, much less produce testimony that they were not in fact threatened. The AJ found, with respect to claim 4, that the record was devoid of evidence to support Complainant’s claim that she was denied upward mobility opportunities. Complainant failed to point to any evidence that she applied for the details and was not selected. As for her belief that comparators were offered positions in the Program and Advanced Leadership Program, Complainant failed to present evidence showing this actually occurred or that she was qualified and available to participate at the time others were purportedly provided such opportunities. Overall, the AJ concluded that Complainant failed to prove any discriminatory motive on the part of the Agency because the evidence clearly established the events at issue were motivated by the investigation into S1’s illegal activities, not Complainant’s protected classes. On December 21, 2020 the Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal from Complainant 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). 2021001822 5 A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, a hearing is required. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without a hearing only upon a determination that the record has been adequately developed for such disposition. See Petty v. Dep’t of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). In the context of an administrative proceeding under Title VII, an AJ may only properly consider summary judgment after there has been adequate opportunity for development of the record. On appeal, Complainant asserts that the AJ erred in issuing a decision by summary judgment because there are material facts at issue. However, 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 must further establish that such facts are material under applicable law. Here, the specific facts Complainant believes are in dispute the instant record establishes are either not in dispute or immaterial. Further, the evidence Complainant purportedly relies on are merely her own subjective beliefs. To prove her claim of discriminatory harassment, 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 race, color, sex, or age. Only if Complainant establishes both of those 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). Like the AJ, we find no evidence whatsoever that the matters at issue occurred because of Complainant’s race, color, sex or age. What the record does show is that S1 subjected males, females, African Americans, and Caucasians to his threatening and intimidating behavior. After SUB2 (Caucasian, male) and SUB3 (African American, male) witnessed S1 examine packages that contained drugs, S1 threatened SUB2 by stating “you’re done” and “your career is over!” S1 called SUB3 on his personal cell phone and described himself as “the most ruthless motherfucker you’ll ever meet. Don’t cross me.” S1 also bullied C1 (Caucasian, female) by demanding that she pick him up from a casino. By her own admission, regarding S1, Complainant stated that she and C1 were both “scared and tired of crying behind fear”. In sum, the record is clear that S1’s hostile behavior towards Complainant and others was motivated by the staff’s report of his purported criminal behavior and not discriminatory animus. A finding of discrimination is precluded by our determination that Complainant failed to establish that any of the actions taken by S1 were motivated by discrimination. 2021001822 6 CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to 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. 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. 2021001822 7 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. 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 July 28, 2022 Date