[Redacted], Beatrice B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Mar 28, 2023

Appeal No. 2021005196 (E.E.O.C. Mar. 28, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beatrice B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021005196 Hearing No. 490-2019-00099X Agency No. 1C-374-0009-18 DECISION On September 27, 2021, 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 August 24, 2021, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Equipment Operator at the Agency’s Network Distribution Center in Memphis, Tennessee. On July 16, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected her to harassment on the bases of race (African-American), sex (female), age (DOB: 1969), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2021005196 2 1. On April 4, 2018, a manager made a derogatory comment to Complainant and had Complainant removed from the building;2 2. On April 11, 2018, a supervisor made a sexually suggestive remark to Complainant while licking his lips;3 3. On August 5, 2018, after Complainant reported to her supervisor that she had been threatened, yelled at, and followed by another employee, the supervisor refused Complainant’s request to call the Postal Police and placed Complainant off the clock; 4. On September 9, 2018, and September 11, 2018, an acting supervisor subjected Complainant to a hostile work environment when the acting supervisor constantly watched Complainant work and singled Complainant out for criticism about Complainant’s work performance; and 5. On November 27, 2018, an acting supervisor made an unwelcome and inappropriate remark and gesture towards Complainant.4 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 21, 2019, motion for a decision without a hearing and issued a decision without a hearing on August 17, 2021. For claim 1, the AJ determined that Complainant failed to establish a prima facie case of discrimination. The AJ explained that Complainant admitted that she had no evidence beyond her own subjective belief that her protected classes were involved in the claim. Further, management officials denied knowledge of Complainant’s prior EEO activity and Complainant provided no evidence indicating that the management official was aware of her prior EEO activity. The AJ found that, even assuming Complainant established a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was not in her work area working and she did not leave the building in a timely manner. 2 Complainant alleged that the manager stated, “You have been here almost two hours and only put two Postal packs in and you are failing to follow instructions.” 3 Complainant alleged that the supervisor made the comment, “I notice you wearing that red lipstick here lately,” while licking his lips, smiling, and moaning in a flirtatious manner. 4 Complainant alleged that the acting supervisor remarked, “I like that red lipstick. Let me taste it.” 2021005196 3 The AJ noted that Complainant failed to dispute the manager’s observation that in almost two hours’ work time, Complainant had only completed a couple of postal packs. Complainant also failed to dispute that she did not leave the premises when asked. Rather, Complainant admitted that it was hours later when she was removed. Turning to claim 3, the AJ found management articulated legitimate, nondiscriminatory reasons for its actions. With respect to the claim, management reported that an investigation was completed, statements were taken, and a meeting was held with management officials on the following day. The AJ noted that the other employee involved in the incident shared the same race and sex classes as Complainant but was not in the protected age class and had no prior EEO activity; however, that employee received the same treatment as Complainant. For claim 4, the AJ noted that Complainant did not allege that her sex or race were factors. The AJ determined that Complainant failed to establish a prima facie case with respect to reprisal because there was no evidence that the acting supervisor was aware of Complainant’s prior EEO activity. The AJ added that Complainant’s basis for believing that her age was a factor was pure speculation. The AJ concluded that, even if Complainant established a prima face case, the Agency articulated a legitimate, nondiscriminatory reason for its action. Specifically, it was part of the acting supervisor’s duty as a supervisor to watch employees. In terms of Complainant’s overall harassment claim, the AJ found that whether analyzing claims 2 and 5, or taking all five claims into account, the Agency’s conduct was not severe or pervasive. The AJ found claims 2 and 5 to be isolated incidents. The AJ classified the remaining claims as the type that typically arise out of workplace conflicts or communications. As such, the AJ concluded that, viewing the evidence as a whole and in the light most favorable to Complainant, the undisputed evidence established the Agency’s entitlement to summary judgment on the complaint. 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 On appeal, Complainant contends that she denied and disputed multiple Requests for Admissions submitted by the Agency. According to Complainant, granting summary judgment derailed her opportunity to put forth evidence on her claims. In addition, Complainant disputes the finding that the record lacked evidence of a causal connection between Complainant’s protected classes and the allegations at issue. Complainant adds that the AJ erred in determining that the Agency’s conduct was not severe or pervasive. Likewise, Complainant argues that the AJ erred when finding that there was no genuine issue of material fact regarding a hostile work environment. The Agency provided the record without specific comment. 2021005196 4 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when they find 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). In order 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 has failed to establish such a dispute. Hostile Work Environment To establish a claim of harassment a 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 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). Therefore, 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission agrees with the AJ that, construing the evidence in the light most favorable to Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. 2021005196 5 The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. While we find that the claims regarding Complainant’s lipstick were inappropriate and unprofessional, even when these incidents are considered together, Complainant has not established that she was subjected to discriminatory conduct that was so severe or pervasive as to alter the terms or conditions of her employment. For claim 1, the manager affirmed that he made the comment. ROI at 170. The manager testified that the comment was made because Complainant was not working in her work area. Id. Complainant was asked to leave for failing to follow instructions and failed to leave the building in a timely manner. ROI at 172. Although Complainant requested a meeting with a Lead regarding the incident, Complainant did not appear for the meeting. ROI at 259. With respect to claim 2, the offending supervisor testified that he joked to Complainant that she had been wearing lipstick lately and denied licking his lips or flirting. He added that once he learned that Complainant was offended, he apologized and Complainant said that she was okay, so he thought it was the end of the incident. ROI at 211. Management officials averred that a meeting was held between Complainant, the offending supervisor, and Complainant’s union representative. ROI at 176. According to the Agency, the offending supervisor apologized to Complainant and Complainant stated that she was “okay.” Id. As for claim 3, the supervisor explained that all involved employees are sent home when there is an altercation. ROI at 215. The supervisor affirmed that he requested a written statement from Complainant and following an investigation, he did not see a need for the Postal Police. ROI at 219. For claim 4, Complainant alleged that in September 2018, an acting supervisor watched Complainant’s work closely, commented on Complainant’s workflow, and interrupted Complainant’s safety walk through, which Complainant viewed as criticisms about Complainant’s work performance. ROI at 132. We note that the Commission has long recognized that ordinary managerial duties such as monitoring subordinates, and managing leave, are all part of normal operational management. Erika H. v. Dep't of Transp., EEOC Appeal No. 0120151781 (June 16, 2017). Regarding claim 5, the supervisor denied making the alleged comment. ROI at 273. While Complainant alleged that another supervisor was standing with Complainant when the comment was made, that supervisor denied any knowledge of the allegation. Id. at 285. 2021005196 6 Further, Complainant asserted that she did not believe this incident occurred based on her race, sex, age, or protected activity. ROI at 149. Based on the record, we find that there is no clear evidence that Complainant was subject to an objectively hostile work environment. Furthermore, to the extent that Complainant is alleging disparate treatment with respect to the claims, we find that Complainant has not shown that the Agency's reasons for its actions were a pretext for unlawful discrimination or reprisal. Upon careful review of the AJ's decision and the evidence of record, as well as the arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination or harassment on the basis of race, sex, age, or in reprisal for protected activity by the Agency 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2021005196 7 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021005196 8 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 March 28, 2023 Date