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

Equal Employment Opportunity Commission

Feb 15, 2023

Appeal No. 2022001317 (E.E.O.C. Feb. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Loren M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001317 Hearing No. 550-2019-00284X Agency No. 4E-570-0032-18 DECISION On January 11, 2022, 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 December 7, 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 Sales, Services/Distribution Associate, 06/DD, at the Agency’s Post Office in Belgrade, Montana. On September 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (56), and reprisal for prior protected EEO activity when, from July 2017, Complainant’s second-level Supervisor (female, 48 years old) has subjected her to harassment. 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. 2022001317 2 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. On June 22, 2021, the AJ expanded the issues in the instant case to include an allegation of unlawful retaliation when: Claim 2: On March 9, 2018, Supervisor told Complainant that the Agency would not consider any transfer request by her while she had a pending EEO complaint, thus causing Complainant to withdraw her then-pending EEO complaint under Agency No. 4E-570-0008-18. The AJ granted a partial hearing addressing claim 2 only, and over Complainant's objections, the AJ further granted the Agency’s February 25, 2021, motion for a decision without a hearing with regard to claim 1, the harassment claim. On November 2, 2021, the AJ simultaneously issued two decisions, one addressing the harassment claim and the second addressing the reprisal claim. Specifically, with regard to harassment, the AJ found that Complainant failed to establish that the actions alleged were based on her protected bases and further found that the actions were insufficiently severe and/or pervasive to constitute harassment. With regard to Supervisor telling Complainant that the Agency would not consider her request for a transfer while she still had a pending EEO complaint, the AJ found that the matter should be dismissed on the grounds that Complainant’s EEO Counselor contact was untimely. The AJ further found that, assuming arguendo that Complainant’s Counselor contact was timely with regard to this matter, the Agency denied making the alleged statement when Supervisor credibly explained that what she actually said was that when considering voluntary transfers, the Agency considers "everything that is open" for the employee, including safety concerns, discipline, and leave issues, but that she did not mention Complainant’s EEO complaint. The AJ noted that when she withdrew her prior complaint, Complainant signed a statement certifying that she did not feel coerced or intimidated, and further noted that the Agency eReassign paperwork requests information about a requesting employee's safety, discipline and leave issues, thus supporting Supervisor’s testimony about what type of information the Agency looks at when an employee seeks a transfer. The AJ thus concluded that Complainant failed to establish that the Agency engaged in per se reprisal. The Agency subsequently issued a final order addressing both decisions and adopted the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination or unlawful retaliation as alleged. The instant appeal followed. 2022001317 3 ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all factual findings following a limited scope hearing that are expressly identified as derived from the hearing by an EEOC AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). All factual findings that are not derived from a hearing or that are not expressly identified as such by the AJ are subject to de novo review. An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. 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 the 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, at § 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”).” Claim 2 - Reprisal We first find that Complainant’s EEO counselor contact was timely with regard to claim 2’s reprisal allegation. During the hearing, Complainant averred that in December 2017 she filed a formal complaint, identified as Agency No. 4E-570-0008-18, that included allegations against Supervisor. Complainant further averred that around that time or shortly thereafter she had thought of transferring to a different facility but was aware of an Agency rule that prohibited employees from transferring until they had worked at their facility for 18 months, which Complainant had not yet reached. Complainant averred that around the end of February or the beginning of March 2018, Supervisor: Came to me and said [____] (Complainant’s name), why don't you just transfer, and I said I was unable to do so because of the 18-month rule, and she said no, that's not true. As long as I'm in agreement and the postmaster where you want to go is in agreement then we can waive that 18 months. 2022001317 4 Complainant further averred that Supervisor encouraged her to seek a transfer and brought her postings of openings at other facilities, including an opening at the Polson facility which Supervisor knew was near where Complainant’s family lived. Complainant averred that Supervisor told her that: If I wanted to get my name in the queue, it wasn't coming open until the first of April, but put my name in there, go ahead and go online and eReassign and put my name in there. After she showed it to me and told me about putting my name in the queue, she then said you will not be looked at for a transfer as long as you have an EEC [sic] open. Complainant averred that she then sent an email to the EEO Counselor and told her she wished to withdraw her pending EEO complaint under Agency No. No. 4E-570-0008-18 because “I desperately wanted out of the [facility] and since [Supervisor] told me that I would not be looked at as long as I have an open EEC case, then I went ahead and withdrew it. I wanted to be considered for the Polson office.” The Commission has held that the actions of a supervisor may be considered reprisal when the supervisor intimidates an employee and interferes with the employee's EEO activity in any manner. See Israel F. v. U.S. Postal Serv., EEOC Appeal No. 0120181863 (Sept. 26, 2019) (citing Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a violation of the law. Id. Central to a finding of reprisal is that the conduct is reasonably likely to have a chilling effect on the complainant or a reasonable employee from engaging in, or pursuing, protected activity. Id. (citing Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018)). Supervisor, however, denied Complainant’s version of events and denied telling her that her transfer would be denied so long as she had a pending EEO claim. Supervisor averred during the hearing that on the date in question she was talking to another employee (Co-worker) in the presence of Complainant and that Co-worker was also inquiring about the Agency’s transfer policies. Supervisor averred that she told Co-worker, in Complainant’s presence, “when a name was given to somebody for a transfer, they look at everything that you have open, active discipline or any attendance issues.” Supervisor, however, denied mentioning open EEO complaints. In her decision, the AJ specifically found Supervisor to be credible and that she was “forthcoming in her demeanor.” As noted above, an AJ’s credibility determination based on the demeanor or tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. Complainant has not presented objective evidence that meets this standard, nor does the record establish that Supervisor’s testimony is so lacking in credibility that no reasonable fact finder would credit it. 2022001317 5 Additionally, we note that in her signed document withdrawing her EEO complaint, Complainant denied doing so under duress or coercion. Given the above, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that reprisal occurred and we discern no basis to disturb the AJ’s findings in this regard. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when she was told that she could not transfer while she had an open EEO complaint, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such a claim must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such a claim is precluded based on our finding that Complainant failed to establish that the action occurred. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment: Supervisor yelled at her for not receiving a 100% grade during "mystery shop" and when Complainant explained that she had not been working at the time of the mystery shop, Supervisor continued to yell at her and failed to apologize when Complainant was subsequently able to prove that she had in fact not been working at the time; a coworker threw a package which came close to hitting Complainant and which also broke a piece of the cage off; after Complainant complained about the hostile work environment to her first-level supervisor, the coworker said to Supervisor "Why would somebody do that? Well karma is a bitch" which Complainant interpreted as a threat; Supervisor asked Complainant to get Complainant’s coffee prior to the customer service window opening, while other coworkers were allowed to take smoke breaks during the workday; when Complainant asked Supervisor about a package that she suspected was filled with marijuana that was to be delivered through the service window, Supervisor leapt from her seat and pretended to hold something in front of Complainant's face. When Complainant told Supervisor that was not proper management behavior, Supervisor told her she was just "returning the favor," as Supervisor had accused Complainant of pushing a packing slip directly into her face previously. Complainant was very startled and thought Supervisor might hit her; finally, Complainant asserts Supervisor and a coworker placed bets with each other about whether Complainant and another coworker would perform their job duties. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had 2022001317 6 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the actions alleged either involved or were based on her protected bases. Nor do we find that the actions were sufficiently severe and/or pervasive so as to alter the terms and conditions of Complainant’s employment. Finally, with regard to Complainant’s arguments on appeal concerning timeliness and the admission of certain items of evidence, we note that we need not address those issues since we find that Complainant’s EEO counselor contact was timely and we find that Complainant has failed to establish reprisal irrespective of when Supervisor first learned of Complainant’s desire for a transfer. Finally, with regard to Complainant’s request to reopen discovery, we note that AJs have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614. 109. Following a review of the record we find that Complainant has not shown that the AJ abused her discretion in this regard. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination or reprisal occurred, and we AFFIRM the Agency’s final order. 2022001317 7 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. 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). 2022001317 8 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 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 February 15, 2023 Date