[Redacted], Velda F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Dec 14, 2022

Appeal No. 2022002937 (E.E.O.C. Dec. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Velda F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2022002937 Hearing No. 410-2022-00138X Agency No. 1-800-275-8777 DECISION 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 April 6, 2022, 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. 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 Rural Carrier Associate (RCA) at the Agency’s Johns Island Post Office in Johns Island, South Carolina. On June 16, 2021, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and sexual harassment based on her sex (female), and in reprisal for prior protected EEO activity (refusing sexual advances), 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. 2022002937 2 1. in November 2020, December 17, 2020, January 15, 2021, and other dates, the Postmaster made unwanted sexual advances toward Complainant; 2. on or about January 4, 2021, a coworker texted Complainant a picture of his penis and no discipline was issued; and 3. on March 19, 2021, Complainant was charged with unscheduled leave and issued a Letter of Warning (LOW). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed her hearing request when Complainant failed to attend the Initial Conference and did not respond to the AJ’s Order to Show Cause to explain her failure to attend.2 The AJ remanded the complaint to the Agency, which issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. The instant appeal followed, and Complainant submitted a statement in support of her appeal. The Agency opposed Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review 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 Chap. 9, § VI.A. (Aug. 5, 2015) (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 2 On appeal, Complainant asserts that she was unaware of the scheduling “due to the abrupt communication changing from priority mail to email.” Under 29 C.F.R. § 1614.109, AJs are granted broad discretion in the conduct of administrative hearings, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. See Malley v. Dep’t of the Navy, EEOC Appeal No. 01951503 (May 22, 1997). Here, we note that the AJ used the email addresses provided by Complainant, and she offered no explanation for why she was “unaware” of the AJ’s communications. Further, the record shows that Complainant used one of the email addresses to send complaints to Agency officials. ROI at 99. As such, we find that there was no abuse of discretion when the AJ dismissed Complainant’s hearing request, and we decline to grant her request for a hearing. 2022002937 3 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Untimely Appeal Brief As an initial matter, we note that Complainant’s appeal brief is untimely. The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). In this case, Complainant filed her appeal on May 4, 2022, and her deadline for submitting a brief was June 3, 2022. Complainant did not file her brief until June 22, 2022. As such, we will not consider the arguments in her untimely brief. Sexual Harassment (Claims 1 and 2) To establish a case of sexual harassment creating a hostile work environment, Complainant must show, by a preponderance of the evidence, that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. We find that Complainant belongs to a protected class based on her sex, and that she was subjected to unwelcome conduct. However, Complainant did not show that the complained of conduct in claim 1 was sexual in nature or based on her sex. Complainant alleged that the Postmaster asked that Complainant take him to dinner, after he offered to take mail to the plant in her place; waited for Complainant in the parking lot when she was late; slammed his fist on a note asking that RCAs report in at 6:00 a.m. the next day; called and texted Complainant when she was needed to come in, and he stated that he would come to her house; watched Complainant when she was at her vehicle; stood maskless close to Complainant; and informed Complainant that use of emergency leave was unscheduled leave. ROI at 78-80. It is undisputed that Complainant felt harassed by the Postmaster’s actions. However, the harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). We find that a reasonable person would not consider the Postmaster’s conduct to be sexual in nature, or sexual advances as alleged by Complainant. When asked why she believed that sex was a factor, Complainant responded that because she was a woman and the Postmaster was a man, and he had asked that she take him to dinner, but we find that none of the complained of actions were based on Complainant’s sex or sexual in nature. ROI at 82. 2022002937 4 We note that the record contains the Agency’s internal investigation into additional allegations of sexual harassment and time fraud against the Postmaster, made by Complainant and other employees. ROI at 258-452. However, the instant decision can only address the specific allegations raised by Complainant in her EEO complaint. The Postmaster retired on June 30, 2021, soon after he was interviewed for the Agency’s investigation on June 2, 2021. ROI at 150, 308. For claim 2, even crediting that the picture that was sent to Complainant was sexual in nature and created a hostile or offensive work environment, we find there is no basis for imputing liability onto the Agency. In a case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999). See Jones v. Dep’t of Labor, EEOC Appeal No. 01A41672 (Oct. 22, 2004) (management official’s failure to address an ongoing tense situation between the complainant and a coworker based on her protected class stated a claim under Title VII). In this case, the Postmaster explained that the Coworker’s ex-girlfriend sent the photo to many employees. The Coworker reported that his ex-girlfriend had hacked his account and sent the photo to his contacts from his old phone. The Postmaster averred that, the next day, two postmasters came to investigate the situation, and the Coworker was given an opportunity to apologize for the incident and it was “over.” ROI at 182, 155-6. We find that the Agency took immediate and appropriate corrective action, and there is no indication that there were any additional incidents. Accordingly, we find that Complainant did not establish that the Agency subjected her to unlawful sexual harassment. Disparate Treatment (Claim 3) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 2022002937 5 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her sex, and in reprisal for protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. Complainant’s Supervisor issued the LOW for unsatisfactory attendance; specifically, for a total of 57 hours of unscheduled leave from January 10, 2020, through February 22, 2020. ROI at 247-8. The Supervisor stated that she issued the LOW because Complainant did not have good attendance at the time, and she had spoken to Complainant about her attendance several times. Complainant filed a grievance and the Supervisor agreed to keep the LOW on file for six months. ROI at 140-1, 88. We find that Complainant has not shown that the proffered reason was a pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). While Complainant blamed the Postmaster, it is undisputed that the Supervisor issued the LOW. ROI at 88, 247-8. Complainant’s bare assertions that management officials discriminated against her are insufficient to prove pretext or that their actions were discriminatory. As such, we find that Complainant did not establish that the Agency discriminated against her based on her sex, or in reprisal for protected EEO activity, when it issued Complainant the LOW. 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 finding that Complainant did not prove that she was subjected to discrimination as alleged. 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. 2022002937 6 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). 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. 2022002937 7 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 December 14, 2022 Date