Majorie J.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jun 6, 2017

0120151103 (E.E.O.C. Jun. 6, 2017)

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

Majorie J.,1
Complainant,

v.

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

Appeal No. 0120151103

Hearing No. 450-2014-00079X

Agency No. 4G-752-0234-13

DECISION

On January 22, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 18, 2014, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor,
Customer Service at the Denison Post Office in Denison, Texas. Complainant’s final day of
service at the Denison Post Office, before she was transferred to a different facility, was May 16,
2013. On May 17, 2013, several Denison Post Office employees, apparently pleased that
Complainant had left Denison, held a “celebration” to which Complainant was not invited. At
the event, a cake, bearing the decorative inscription “The Bitch is Gone,” was shared by the
attendees. While the event was in progress, an employee telephoned Complainant to inform her
of what was happening.

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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On August 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American) and sex (female) when, as part of a
celebration that took place when she left the Denison Post Office, a cake was brought in with the
words “The Bitch is Gone” written on it.

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 (AJ). Complainant timely requested a hearing.
The AJ assigned to the case granted the Agency’s motion for a decision without a hearing and
issued a decision on December 4, 2014. 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.

ANALYSIS AND FINDINGS

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. (Aug. 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).

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. For the reasons set forth below, we find that the evidence adduced does not
present a genuine issue of material fact.

It is well-settled that harassment based on an individual’s statutorily protected bases is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected
classes or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to
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her membership in those classes or her prior EEO activity; (3) the harassment complained of was
based on those classes or that activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance 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). Harassment is actionable if it is
“sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create
a hostile or abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993),

The Commission has held that the repeated use of the term “bitch” was sufficient to demonstrate
sex-based animus. See Morrison v. U.S. Postal Service, EEOC Appeal No. 07A50003 (April 18,
2006). However, we find that in this case, unlike in Morrison, it could not reasonably be
concluded that the allegedly harassing behavior to which Complainant was subjected, i.e.,
referring to Complainant once as a “bitch,” was either severe or pervasive. The conduct took
place in her absence and was intended to take place without her knowledge. Significantly,
Complainant premises her claim on a single incident. The Commission has long held that a
single incident or group of isolated incidents will generally not be regarded as discriminatory
harassment unless the conduct is severe. Irvin C. v. Dept. of State, EEOC Appeal No.
0120141173 (August 29, 2016). We agree with the AJ’s conclusion that this single event does
not rise to the level of harassment. We also note that the Agency disciplined the Denison
Postmaster and Supervisor who allowed the “celebration” and offensive cake. The Postmaster
was issued a reduction in grade, with the cake incident cited as one of several reasons for the
reduction, and the Supervisor received a letter of warning.

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 implementing the AJ’s
decision finding Complainant was not discriminated against as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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.
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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 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. The requests 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
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 (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
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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

June 6, 2017
Date