Juanita K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Sep 5, 2019

2019001857 (E.E.O.C. Sep. 5, 2019)

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

Juanita K.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 2019001857

Hearing No. 471-2016-00068X

Agency No. 1J-494-0028-15

DECISION

On December 17, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 29, 2018 final action concerning an equal employment opportunity
(EEO) complaint claiming 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

On May 16, 2015, Complainant was hired as a Mail Handler Assistant at the Agency’s
Processing and Distribution Facility in Grand Rapids, Michigan, subject to a probationary
period.

On November 4, 2015, Complainant filed a formal complaint alleging that she was subjected to
harassment/a hostile work environment based on race (Caucasian), color (white), sex (female),
age (48), and in reprisal for prior EEO activity when:

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.
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1. beginning in June 2015 and continuing to July 24, 2015, her supervisor sexually
harassed and stalked her; and

2. on July 24, 2015, her Agency employment was terminated.

After an investigation of the complaint, the Agency provided Complainant with a copy of the
investigative file, and Complainant requested a hearing before an EEOC Administrative Judge
(AJ). The AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a
Hearing on October 16, 2018. Both Complainant and the Agency responded to the Notice of
Intent. On November 21, 2018, the AJ issued a decision by summary judgment in favor of the
Agency.

In finding no discrimination by summary judgment, the AJ found that the record developed
during the investigation established the following undisputed facts.

Regarding claim 1, Complainant asserted that beginning in June 2015 and continuing to July 24,
2015, her supervisor (Caucasian male, age 27) sexually harassed and stalked her. According to
Complainant, her supervisor gave her “unwanted attention” and said she was “athlete [sic] and
pretty.” The AJ noted that when asked to describe in detail the conduct and behavior she
believed was sexually harassing in nature, Complainant stated that “[supervisor] gave me
unwanted attention in work parking lot…and on work room floor.”

The AJ further noted that when asked how she reacted to these actions and how she responded,
Complainant stated, “I did not believe it was anything to worry about. I did not get
[supervisor’s] behavior at first.” Complainant stated that during the relevant period, she
informed her two co-workers about the supervisor sexually harassing her. She also noted that a
different supervisor saw the supervisor staring at her. However, Complainant acknowledged that
she did not report the alleged harassment to Agency management.

Complainant’s manager (“Manager 1”) (Caucasian, white female, age 59) stated at that time,
Complainant did not notify her about the alleged sexual harassment by the supervisor until after
she was terminated. Specifically, Manager 1 stated that while Complainant was being escorted
from the facility, she told her that the supervisor had followed her home and requested sex.
Manager 1 stated that she then asked Complainant to provide a written statement, but
Complainant refused.

Manager 1 stated that she and another manager (“Manager 2”) (Caucasian male, age 36)
immediately investigated Complainant’s allegations. The Acting Manager stated that the
outcome of the investigation was “inconclusive and did not substantiate Complainant’s
allegations, because Complainant refused to provide a written statement or be interviewed as a
part of the investigation and [supervisor] denied her harassment allegations.”

Regarding claim 2, Complainant alleged that on July 24, 2015, her employment was terminated.
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The AJ noted that the Acting Manager was the deciding official to terminate Complainant during
her probationary period, for poor performance. Specifically, the Acting Manager stated at that
time, Complainant “received two negative probationary evaluations and different supervisors had
spoken to her about her failing to meet the expectations of her position. She also had
unscheduled absences and ‘call-ins’ after receiving her negative review which factored into my
decision.”

Based on this evidence, the AJ concluded no discrimination was established. The Agency issued
its final action, adopting the AJ’s decision.

The instant appeal followed.

ANALYSIS AND FINDINGS

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. 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. (as revised, August 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).

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. 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 failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

Sexual Harassment

To establish a claim of hostile environment harassment, Complainant must show that: (1) she
belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her 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 Agency.
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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).

In other words, to prove her harassment claim, 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. Only if Complainant
establishes both of those elements – hostility and motive – will the question of Agency liability
present itself.

Here, Complainant has failed to establish the alleged harassment occurred as she alleged. The
involved supervisor has denied her allegations and there is no evidence that Complainant ever
reported the harassment until after she was terminated. Moreover, even after she reported the
harassment, Complainant refused to participate in the investigation into her allegations
conducted by management. Complainant’s claim of harassment is precluded based on our
finding that Complainant failed to establish that the proffered incidents either occurred as alleged
or were motivated by Complainant’s protected bases. See Oakley v. U.S. Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).

Termination

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions – that
Complainant was terminated due to unsuccessful work performance. Complainant did not prove,
by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask
discrimination or unlawful retaliation.

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.
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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).

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.

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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

September 5, 2019
Date