Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

May 15, 2013

0120114156 (E.E.O.C. May. 15, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.

Appeal No. 0120114156
Hearing Nos. 490-2010-00086X & 490-2010-0179X
Agency No. 4H370004209

DECISION

On September 6, 2011, Complainant filed an appeal from the Agency’s August 10, 2011, 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. 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s Processing and Distribution Center (P&DC) located in Nashville, Tennessee. On
March 30, 2009, Complainant filed an EEO complaint and subsequent amendments, alleging
that the Agency harassed her on the bases of race (White) and in reprisal for prior protected
EEO activity since August 2008. 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
but subsequently withdrew her request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

Complainant identified the following responsible management officials: (1) four different
Black Distribution Operations supervisors (SDO1), (SDO2), (SDO3 and (SDO4); (2) a Black
Distribution Operations manager (MDO), (3) a Black Senior Plant Manager (SPM); (4) a Black
Plant Manager (PM); and (5) a White Acting Manager of Operations Support (AM).
Complainant identified the following instances of alleged harassment:
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(1) On August 12, 2008, a Black co-worker (C1) publicly threatened to file a
sexual/personal harassment complaint against anyone who says anything
about her shirts.

(2) On August 18, 2008, C1’s ongoing harassment and intimidation, and threats
continued and increased by her wearing a black and white shirt that read,
“You see me-Hi Hater" and the back read, "by hater" and at the time clock,
C1 made certain Complainant could read the entire front and back.

(3) On September 20, 2008, C1 blocked the time clock, glared, heckled, and
made offensive facial gestures towards Complainant. In addition, C1 and
another Black co-worker (C2) spread rumors about Complainant’s sexuality,
and a co-worker advised fellow Black employees not to speak to
Complainant as it was not a job requirement and management agreed.

(4) On November 12, 2008, a supervisor read an Agency memorandum
regarding wearing political clothes/buttons resulting in C1 causing a scene
with Complainant saying she didn't care what the memorandum said, she
was going to wear a shirt tomorrow and she had a paper stating she was
allowed to wear anything because of the Hatch Act.

(5) In December 2008, C1 clocked in fellow Black employees so they were
never late since management cracked down on tardiness and Complainant
and other employees complained to management making C1 furious with
them.

(6) On January 12, 2009, C2 made racial slurs about all White women being
liars.

(7) On January 21, 2009, C1 attempted to hit Complainant with a tub and wore
“a racial and political shirt;”

(8) On January 25, 2009, C1 wore a racial shirt with the words, "American by
abduction" and stated she wore the shirt because of the racists in the
building;

(9) On January 27, 2009, C1 wore a new, political, racial Obama shirt and
loudly exclaimed that they needed to do "Code Black" day at the Post Office
and purposely put empty equipment into Complainant's staging area;

(10) On February 2, 2009, C1 wore a racist shirt with the words, "Do not
bleach;"
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(11) On February 7, 2009, a Black coworker (C3) called Complainant a
"f_cking baby" for going to management about what had been going on and
told her nobody wanted to talk or work with her.

(12) On June 10, 2009, Complainant and a Black co-worker (C4) were in the
break room and C1 came over to C4 and started making sexual comments to
him. C1 then grabbed her hands and pulled her butt cheeks apart and
backed toward them asking C4, 'Which cheek right or left."

(13) On June 14, 2009, a disagreement erupted on the Prep Belt with
Complainant, C2, and two other co-workers (C5 and C6) (race not
specified) in which C2 said about Complainant that "she has a problem with
Black people and she is a liar."

(14) On July 14, 2009, while working on Light Duty Prep Belt, another Black
co-worker (C7) started harassment by glaring and not speaking when asked
work related questions and walked off returning with a supervisor and
screamed publicly on the work room floor that Complainant was a liar and
there were only problems when Complainant worked the belt.

(15) On July 22, 2009, management measured the length of Complainant’s
shorts because of a complaint from C7 and she had to change into
pants/sweats from her locker or would have been sent home.

(16) On October 26, 2009, the Mail Handlers were kept back after an initial
meeting and management advised that they must work together as a team,
follow rules, help each other out, and what had occurred last year was over.
Thereafter, Complainant was attacked by C1, C7, and another Black co-
worker (C8) who called her names and told her they had pampers in the car
for her.

(17) On November 2, 2009, Complainant went to work nervous and shaky
and at 1:00 p.m. found out she had the Light Duty Prep Belt which made
her believe she was being set up by management as two Black employees
were also working the belt.

(18) On November 9, 2009, Complainant was working Light Duty Prep Belt
with C7 and C2 when harassment started immediately so she went to a
supervisor who agreed with her resulting in C2 going crazy, mumbling and
pacing. C2 and C7 glared at Complainant and C2 moved the belt without
saying the required, "belt moving" and mail fell all over floor and they
refused to help pick it up.

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(19) On December 2, 2009, Complainant’s Black union steward (C9) started
a tirade about Complainant having malice in her heart, he has food for all,
he was tired of this, etc. C9 never spoke to Complainant politely even
though he was her union steward. C9’s facial expression, tone of voice, and
stance were frightening and came out of nowhere.

(20) On December 21, 2009, Complainant was subjected to harassment
because of a co-worker wearing a political t-shirt with “racial political
remarks.” Specifically, C1 wore a t-shirt stating “Obama – Our Time Has
Come.”

(21) On December 21, 2009, Complainant was subjected to “hostile glaring,
sneering, screaming and cussing by a co-worker.” C2 screamed to another
employee that C1 liked getting “golden showers” and C2 yelled “I’m
chocolate thunder and I make women wander.” Complainant explained she
felt this type of language by her co-workers was normal whenever
Complainant was on the belt.

(22) On January 11, 2010, Complainant was subjected to hostile glaring,
sneering, and cussing by C2. Complainant alleged she immediately reported
what had happened to SDO1 after C2 “charged” Complainant, but was
placed off the clock on union time for alleged insubordination due to turning
her back on her supervisor.

(23) On February 1, 2010, Complainant was assigned to work with a Black
co-worker (C10) who did not communicate with Complainant during the
work day. Complainant inadvertently put her machine on C10’s and instead
of allowing Complainant to move her machine three feet, C10 moved her
machine back 30 feet. Complaint asserts that she did not report the incident
to management because if she said anything, she would just get in more
trouble.

(24) On February 2, 2010, C1 pulled a phone from her bra and management
laughed instead of addressing the use of phones on the workroom floor

(25) On February 3, 2010, Complainant observed a “racially divisive t-shirt”
on C1. She also had to see shirts such as, "F_ck her or leave her." Also,
on February 3, 2010, Complainant was accused by co-workers of casing
mail during meetings, C1 was permitted to “publicly denigrate”
Complainant with no consequences, management officials told Complainant
that unless an employee physically touched her or used the word "kill," there
was nothing they could do.

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(26) On February 7, 2010, Complainant was required to work two machines
without help and there was a segregated, private party going on.

(27) On February 15, 2010, SDO1 publically reprimanded Complainant for
taking too much time in the union office.

(28) On February 20, 2010, Complainant was told another employee was
going to provide a false statement against her.

(29) On February 22, 2010, a “yelling incident” occurred on the floor.

(30) On February 23, 2010, employees used a public radio and Complainant
was “nearly injured by another employee's actions.”

(31) On February 24, 2010, Complainant was required to work with a “non-
cooperative employee.”

(32) On March 1, 2010, C1 glared at Complainant and employees played the
radio in order to harass her.

(33) On March 13, 2010, C3 did not provide Complainant with assistance and
did not properly complete her duties. Also on March 13, 2010,
Complainant was placed on “union time” because SDO1 did not like
Complainant’s statement to another employee.

(34) On March 15, 2010, Complainant was subjected to continuing
harassment and cried in the ladies room for an extended period of time.
SDO2 told Complainant she should go home so that other employees would
not see her sobbing. Complainant was told her tears caused them to
continue the harassment and also if she cried on the floor, she would be
walked out.

(35) On March 20, 2010, SDO1 told Complainant not to enter the workplace
unless she was working or forgot something and became upset when
Complainant asked for a union representative.

(36) On March 22, 2010, Complainant could hear a radio playing in the light
duty prep area. She alleges she was not allowed to complain to management
because they had instructed not to do so.

(37) On March 22, 2010, an employee wore a “racial/political shirt” with
verbiage in regard to her race. Complainant avers the shirt stated “Our time
has come."

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(38) On April 7, 2010, SDO1 and SDO2 issued Complainant a Letter of
Warning (LOW) for improper conduct (i.e., failing to return to her work
area on March 15, 2010).

(39) On April 26, 2010, Complainant was not allowed to solicit overtime.

(40) On April 27, 2010, Complainant was subjected to C1 wearing an
“offensive tee-shirt” which stated “American by Abduction and
Enslavement."

(41) On May 2, 2010, SDO1 told Complainant that he had received
complaints from a co-worker (C11) (race not specified) about Complainant
placing letter trays in the required staging area and about her working too
close to his own work area.

(42) In mid-May, 2010, C9 told Complainant that she had been reassigned
from the light duty prep area.

In addition, Complainant testified she had asked individuals to stop the harassment and she had
informed management. Complainant also asserted that the harassment had affected her in that
she had physical and emotional breakdowns. Complainant alleged she parked her vehicle away
from the alleged harassers and was watchful when leaving at night. She contended work was
harder both physically and emotionally as mail was hidden making it difficult to retrieve and
she “was required to do Blacks' jobs.” Complainant also alleged that Black employees would
not communicate with her directly, but only through a supervisor unless it was derogatory,
humiliating, or offensive. In addition, Complainant alleged that her supervisors assigned her
the hardest jobs alone and she had to follow the rules and Blacks did not. She averred that she
was not allowed to respond back to supervisors, but Black employees were allowed to and
were also insubordinate without being disciplined. Complainant further alleged that
managements' response to her complaint was to get tougher, put on headphones, quit, bid out,
ignore it, put up with it, get counseling, or they would take care of it. Complainant explained
she was not certain if management ever conducted an investigation into her allegations. She
also alleged the harassment had not stopped.

ANALYSIS AND FINDINGS

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 Chapter 9, § VI.A. (November 9, 1999) (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
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of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

Aside from bare, uncorroborated assertions, the record is devoid of documentary or testimonial
evidence to support any of the allegations of disparate treatment with respect to the Letter of
Warning or alleged reassignment. Moreover, numerous management officials articulated a
legitimate, non-discriminatory reason for issuing the LOW (i.e., Complainant would not return
to work) and testified to a policy of rotating assignments equally among the mail handlers. In
addition, Complainant has failed to present evidence of racial or retaliatory animus on the part
of any Agency employee. To the extent that Agency witnesses corroborate Complainant’s
assertion that she received hostile behavior from her co-workers, the record indicates that the
hostility was motivated by animus toward Complainant’s because of: (1) her constant
complaints to management regarding vulgar and lewd language in Complainant’s presence; (2)
the constant complaints about C1’s political t-shirts; and (3) the constant complaints about her
co-workers breaking the rules, rather than being motivated by Complainant’s prior EEO
activity or race. We also note that management officials strenuously denied Complainant’s
assertions with respect to the manner in which they allegedly responded to her complaints of
harassment and the record is devoid of testimonial or documentary evidence to corroborate
Complainant’s assertions.

We disagree with Complainant’s assertion that the messages from C1’s t-shirts are enough to
establish racial animus. The allegedly “offensive,” “racist,” “racially divisive,” and “vulgar”
t-shirts worn by C1 include the following: (1) on August 18, 2008, a black-on-white shirt that
read, "You See Me Hi Hater" on one side, and "Bye Hater" on the other; (2) on January 21,
2009, an unspecified "racial and political" shirt; (3) on January 25, 2009, a shirt that said,
"American by Abduction;" (4) on January 27, 2009, an unspecified Barack Obama t-shirt; (5)
on February 2, 2009, a shirt that said, "Do Not Bleach;" (6) on December 21, 2009, as well as
February 3, March 22, and May 22, 2010, a shirt with "racial political" remarks: "Obama Our
Time Has Come;" and (7) on April 27, 2010, "American by Abduction."

The record shows that C1 wore t-shirts expressing the pride she had in our then newly-elected
president, the first African-American ever to hold that office. In addition, she wore a t-shirt
that stated the basic historical fact that the forefathers of many African-Americans were stolen
from their homes in Africa and enslaved upon their arrival to this continent. Contrary to
Complainant’s views, we do not find these messages to be objectively offensive, divisive, or
racist.

CONCLUSION

Accordingly, 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.

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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.

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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

May 15, 2013
Date