0120111306
06-12-2013
Alexis Blackwell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Alexis Blackwell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120111306
Hearing No. 550-2010-00004X
Agency No. 1F-942-0019-09
DECISION
Complainant filed an appeal from the Agency's November 18, 2010, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge erred in issuing summary judgment in favor of the Agency, finding that Complainant was not subjected to a hostile work environment on the bases of race, sex, disability, or reprisal, when an unidentified person tampered with Complainant's locker; a coworker intentionally bumped into Complainant and gave her dirty looks; a supervisor informed Complainant not to submit any more Postal Form 13's unless she had a witness; and suspended Complainant for 14 days after a custodian complained that she had harassed him.
BACKGROUND
Complainant worked as a Parcel Post Distribution Clerk at the San Francisco Network Distribution Center in Richmond, California. In November 2008, she and several other female colleagues transferred from the tour 3 night shift to the tour 2 day shift. Report of Investigation (ROI), Affidavit (Aff.) A, at 3. After awhile, they felt harassed by several veteran tour-2 female employees.1
On February 28, 2009, Complainant reported to management that someone had tampered with her locker because her lock had been broken and her President Obama sticker had been removed. Id. at 8. Four days later, the Agency repaired her locker. Id. at 9.
About two weeks later, on March 15, 2009, Complainant reported that an African American female coworker intentionally bumped her in the ladies locker room. Complainant wanted the coworker to be removed or switched to another tour or location. Afterward, an acting supervisor and coworkers began escorting Complainant to the ladies locker room. Deposition, Acting Supervisor, at 10, 12. According to Complainant, the female coworker attempted to provoke her by constantly giving her dirty looks. ROI, Aff. A, at 11.
On March 19, 2009, Complainant's supervisor allegedly informed Complainant that the district manager had told Complainant's supervisor to tell Complainant not to write anymore letters or statements on Postal Form 13's, accusing coworkers of wrongdoing without a witness to her allegations. Id. at 13.
On March 31, 2009, Complainant contacted an EEO counselor.
Two weeks later, on April 14, 2009, management issued a letter of warning to the female coworker for bumping Complainant on March 15, 2009. On May 23, 2009, management suspended Complainant for 14 days, based on allegations of harassment raised by a custodian. The custodian maintained that on March 16, 2009, he was walking past Complainant and her husband when Complainant "mean mugged" him, ran up behind him, and said "That's right, run like the punk that you are before I kick your ass." The custodian claimed that the same threatening behavior occurred again the next day, on March 17, 2009. Complainant maintained that on March 16, 2009, she did not say anything to the custodian and that he had been the one starring at her. Management was not convinced by this explanation, since Complainant admitted she had been absent from her work area without authorization during that time. ROI, Exhibit (Ex.) 4, at 1.
Complainant filed an EEO complaint, alleging that the Agency subjected her to hostile work environment/harassment on the bases of race (African-American), sex (female), disability (stress), and reprisal for prior protected EEO activity when:
1. on February 28, 2009, her locker was tampered with;
2. on March 15, 2009, an African-American female coworker intentionally bumped her and management failed to take appropriate action and provide a safe work environment;
3. the African-American female coworker who bumped her watches her while she works, gives her dirty looks, and tries to provoke her;
4. on March 19, 2009, her supervisor threatened her not to bring more allegations to management's attention without a witness;
5. on May 23, 2009, she was suspended for 14 days.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's March 22, 2010 motion for a decision without a hearing and issued a decision without a hearing on November 10, 2010.
The AJ found that the first four incidents, the locker tampering, the bumping and glaring by a coworker, management's telling Complainant to stop submitting allegations without witnesses, did not constitute a pattern of events sufficiently severe or pervasive to constitute a hostile or abusive work environment.
For the allegation that Complainant's supervisor had advised her not to raise additional allegations to management without a witness, the AJ found that the matters complained of by Complainant were not EEO related, but were rather about interpersonal relationships between employees. The coworker who bumped Complainant and who Complainant felt threatened by was the same race and sex as Complainant. Further, the supervisor's statement was not made in response to any allegation Complainant made in pursuit of her EEO complaint. The AJ found no evidence to indicate that management's purported statement had a chilling effort on the EEO process.
Finally, the AJ found no evidence to suggest that management had been motivated by Complainant's race, sex, disability, or prior EEO activity, when it decided to suspend her on May 23, 2009 for her behavior towards the custodian.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant' non-legal representative submitted a 59-page brief, raising various challenges to the proceedings and decision below. Generally, Complainant's theory of this case is:
* the Agency has a zero-tolerance policy for harassment; over time;
* managers and supervisors (who are male and of a different race than Complainant) have not sufficiently enforced this zero-tolerance policy to protect African American female workers that have alleged harassment.
* Instead, the managers and supervisors hold inadequate or flawed investigations and ultimately fail to take appropriate actions, i.e., quickly remove the victims from harm.
* and due to the harassing conduct, Complainant became extremely stressed, and now has a mental disability.
The non-legal representative first contends that the record was not adequately developed to show that management failed to take appropriate action (conducting a thorough investigation) in response to Complainant's locker being tampered with.
Second, Complainant's non-legal representative maintains that the March 15, 2009 incident of intentional bumping was more serious than portrayed in the summary judgment decision. The non-legal representative describes the unwelcome conduct as a verbal and physical assault, in which the coworker yelled at Complainant in a strident manner (that she was going to "fuck her up"). Moreover, the non-legal representative again maintains that management failed to adequately remove Complainant from harm, in that they only issued a letter of warning to the female coworker, which eventually was reduced to an official discussion.
Third, the non-legal representative maintains that Complainant had begun to document all of her interactions using the Postal Form 13. The Postal Form 13 is an Agency form that an employee can use to document complaints about health, safety, harassment, threats, and other matters. Complainant averred that agency officials told Complainant to stop writing Postal Form 13's. Because Agency officials denied making this statement, there is a genuine issue of material fact in dispute.
Fourth, Complainant maintains that management's 14-day suspension of her was improper because management conducted an inadequate investigation. Management failed to interview Complainant's husband or check to see whether Complainant had been at work on one of the days in question. Had management investigated the custodian's allegations further, they would have realized that the custodian's claim of harassment on March 17, 2009 were false, because that was Complainant's off day.
Further, the female coworker who had bumped Complainant on March 15, 2009 admitted in her deposition that the custodian had given her the statement of harassment to pass on to management. Deposition, Female Coworker, at 28. She testified that she gave the custodian's statement to management because Complainant had just before called the postal inspectors on her. Id. at 30. According to Complainant, this testimony shows that the custodian and the female coworker collaborated and conspired together to bring false allegations against her and her husband, and that the Agency should not have suspended her based on false allegations.
ANALYSIS AND FINDINGS
Standard of Review
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that it was appropriate for the AJ to issue summary judgment on this record. The record was adequately developed for summary disposition because it contained detailed affidavit and deposition testimony from Complainant, her supervisors, the female coworker who had bumped into Complainant, and several of Complainant's coworkers who had also felt they had been harassed.
Hostile Work Environment Harassment
To establish hostile work environment harassment, a complainant must show five things. First, the complainant must be a member of a statutorily protected class. Second, the harasser engaged in unwelcome verbal or physical conduct. Third, the unwelcome conduct was based on the complainant's statutorily protected class. Fourth, the unwelcome conduct either (a) affected a term or condition of employment, or (b) had the purpose or effect of unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment. Fifth, 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.
In this matter, Complainant's non-legal representative has implicitly conflated two elements of a hostile work environment case: the unwelcome verbal or physical conduct; and the basis for imputing liability to the employer. We must separate them and clearly define what Complainant must show for each element.
Unwelcome and offensive conduct may include offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objectives or pictures, and interference with work performance. Here, the unwelcome and offensive conduct consisted partly of actions taken by Complainant's coworker (bumping Complainant and giving her dirty looks) and by an unknown and unidentified person (tampering with Complainant's locker). For these incidents of unwelcome conduct, Complainant has the burden to show that the female coworker and the unidentified person who tampered with her locker were motivated by Complainant's race, sex, disability, or prior EEO activity.
Upon review, we find there is insufficient evidence to establish that the female coworker was motivated by those bases. Complainant and her supporting witnesses suggested a number of possible reasons why this female coworker acted the way she did:
* She seemed to be mentally unstable. ROI, Aff. A, at 9
* At times she acted as if she were possessed by a demon. Id. at 36-37.
* She viewed the newly transferred women from tour 3 as competition for male attention because the tour 2 men seemed friendly and cordial to the newly transferred tour 3 women.
None of these suggested reasons are sufficient to establish that the female coworker's conduct was based on Complainant's statutorily protected classes.
For similar reasons, since the person behind the tampering of Complainant's locker was never discovered or identified, Complainant has not shown that the locker room tampering and removal of her President Obama sticker was based on her statutorily protected classes.
Complainant instead attempts to frame management's failure to take prompt and appropriate corrective action as the unwelcome conduct that was motivated by Complainant's race, sex, or prior EEO activity. This framing is flawed because these incidents are examples of co-worker harassment, in which management's responses are only scrutinized when determining liability for the coworkers' harassment.
Regarding the 14-day suspension of Complainant for harassing a custodian, Complainant suggests that the Agency would not have suspended her if management had more thoroughly investigated the matter by interviewing her husband, who had also witnessed the incident, and verified her work schedule to reveal that she could not have harassed the custodian on March 17, 2009. The reason management failed to do so at the time, according to Complainant, was because she was an African-American female who had engaged in protected activity.
In their testimony, management officials stated that they chose not to interview Complainant's husband because they felt he would not make a credible, objective witness. They felt that Complainant's husband would simply back up his wife's story regardless of what actually happened. Complainant's first level supervisor stated at the time he was investigating the custodian's allegations, he did not believe Complainant's story because she had admitted to being outside the work area without authorization. He later acknowledged in his deposition that he did not realize Complainant could not have harassed the custodian on the second day, until it was pointed out by Complainant's representative during cross-examination at the deposition.
We note that an employer's business decision cannot be found discriminatory simply because it appears that the employer acted unwisely, or that the employer's decision was in error or a misjudgment. Here, the evidence shows that Complainant's supervisor belatedly realized that he had erroneously suspended Complainant for 14 days. However, there is no evidence that his oversight at the time had been motivated by Complainant's sex, race, disability, or protected activity.
Finally, we determine that an alleged conversation in which management asked Complainant to not submit additional Postal Form 13's without an accompanying witness is not, by itself, severe or pervasive enough to constitute hostile work environment harassment.2
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 order, which upheld the AJ's summary judgment decision, finding that Complainant failed to establish hostile work environment harassment on the bases alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_6/12/13_________________
Date
1 In her affidavit, Complainant described incidents in which other women were allegedly subjected to harassment by the veteran tour-2 female employees. In one incident, a veteran tour-2 female employee tore up one of Complainant's coworker's Bibles, and falsely accused Complainant's coworker of hitting her. Report of Investigation, Affidavit A, at 30.
2 Like the AJ, we find no evidence that this matter was EEO related, i.e., made in response to any allegation Complainant made in pursuit of her EEO complaint, but involved interpersonal relationships between employees.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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