Shila V.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 8, 20190120182019 (E.E.O.C. Oct. 8, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shila V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120182019 Agency No. 1K221004917 DECISION On May 21, 2018, 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 April 17, 2018, 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 (FAD). ISSUE PRESENTED Whether the Agency correctly determined that Complainant was not discriminated against based on sex when, on July 17, 2017, her supervisor touched her breast, and buttock, and stated, “Do you want to go home and wash this, my body,” which she believed constituted 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. 0120182019 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-time Mail Processing Clerk at the Agency’s Northern Virginia Processing and Distribution Center (P&DC) in Merrifield, Virginia. On November 10, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female and LGBT) as set forth above. The Agency stated that Complainant failed to provide an affidavit. Therefore, information used as evidence to describe her claim, and in consideration of its merits, was extracted from the formal complaint and other relevant documents contained in the file. Complainant alleged that her supervisor (S1) stroked her on her breast and buttocks in a “relationship type way;” and that S1 asked if she wanted to go home and wash this “my body.” She asserted that S1’s action interfered with her work performance that day and for the following weeks; that she was treated differently than other employees; and that S1’s actions and intentions were objectively and subjectively hostile, abusive and humiliating. S1 denied touching Complainant’s breast and buttocks, asserting that Complainant misunderstood her statements that she (S1) felt like going home to take a shower and wash herself from being sweaty because it was a hot day. She stated that there were no witnesses to the alleged incident; and that in response to her statements, Complainant laughed and walked to her machine. S1 asserted that Complainant did not tell her that the actions were unwelcome or must stop; and that Complainant’s sex or sexual orientation were not factors in her actions. 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant’s non-attorney representative maintained, among other things, that Complainant reported S1’s conduct to S2, her manager, who threatened Complainant with a Letter of Suspension if she went forward with her allegations. According to the representative, this was why Complainant did not submit an affidavit. The representative also maintained that he personally witnessed S1 engage in other acts of inappropriate behavior involving other employees. The Agency did not submit a brief on appeal but urges the Commission to sustain its FAD. 0120182019 3 STANDARD OF REVIEW 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 Chap. 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 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”). ANALYSIS AND FINDINGS Harassment and Hostile Work Environment To establish a claim of harassment and hostile work environment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). After a careful review of the record, we find no persuasive evidence that the conduct attributed to S1 by Complainant took place as alleged; therefore, we find that she did not establish element 2 of the harassment claim set forth above. S1 denied touching Complainant as alleged and asserted that Complainant misunderstood her statement that she was going home to take a shower to wash off the sweat from her own body on a hot day. According to S1, Complainant laughed at that statement, and did not tell her that the actions were unwelcome or must stop. We note in this regard that Complainant did not submit an affidavit during the investigation, nor did she request an administrative hearing before an EEOC Administrative Judge (AJ). Consequently, we do not have the benefit of an AJ’s credibility determinations after a hearing and can only evaluate this matter based on the evidence presented to us. We note the assertion on appeal that Complainant was threatened by S2 with retaliation if she went forward with her allegation against S1. Again, Complainant provided no evidence to support either this assertion or the unsworn statements by her representative of other acts of misconduct by S1. 0120182019 4 We therefore find that Complainant has failed to demonstrate by a preponderance of the evidence that the Agency subjected her to harassment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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). 0120182019 5 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 October 8, 2019 Date Copy with citationCopy as parenthetical citation