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

Equal Employment Opportunity Commission

Mar 16, 2023

Appeal No. 2021005297 (E.E.O.C. Mar. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Veronica F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021005297 Hearing No. 410-2019-00307X Agency No. 4K-300-0227-18 DECISION On September 30, 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 September 15, 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate, 05/W, at the Buford Post Office in Buford, Georgia. She joined the Agency in early February 2017 and originally worked at the East Carrier Annex; however, due to her inability to perform her duties as a Rural Carrier Associate, the Agency temporarily allowed her to perform craft duties at the Buford Post Office. 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. 2021005297 2 On August 22, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:2 1. On April 10, 2018, after informing management that she was uncomfortable working with the Union Steward, she was not scheduled to work until April 17, 2018, and her time was charged to leave without pay (LWOP). 2. On April 17, 2018, after reporting that a coworker was subjecting her to sexual harassment, management failed to properly address the matter. 3. On April 17, 2018, she was reassigned to work at the East Carrier Annex. 4. Since April 17, 2018, her work hours have been reduced and her salary has been lowered. 5. On April 20, 2018, she was subjected to an investigative interview that lasted over 40 minutes. 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. Following discovery, the Agency filed a motion for a decision without a hearing. After Complainant failed to timely respond, the AJ summarily granted the Agency’s motion on claims 1, 2, and 5 by email on February 22, 2021. The AJ, however, denied the Agency’s motion on claims 3 and 4, as the AJ determined that there were sufficient genuine issues of material fact in dispute to warrant a hearing. The AJ indicated that a written decision would be forthcoming. On February 25, 2021, the AJ held a hearing into the matter. During the hearing, the AJ initially orally recapped the events leading up to the underlying incidents in claims 1, 2, 5. With regard to these claims, the AJ found that the Union Steward started making unwelcome comments to Complainant in November 2017, when he repeatedly talked about setting Complainant up on dates with coworkers. The AJ found that after Complainant reported these comments to management in January 2018, the Union Steward stopped all non-work-related communications with Complainant. The AJ noted in the following weeks, the Union Steward, and others, had concerns regarding management’s decision to assign craft duties to Complainant and ultimately filed a grievance against the Agency in mid-March 2018, regarding the matter. Complainant then contacted management on April 10, 2018, and again accused the Union Steward of sexual harassment when he talked about setting her up on dates with coworkers. 2 In her formal complaint, Complainant raised a claim of discrimination regarding the forms that she submitted to the U.S. Department of Labor’s Office of Workers’ Compensation Programs. As Complainant did not challenge the Agency’s dismissal of this claim pursuant to 29 C.F.R. § 1614.107(a)(1), we need not address it. We also note that Complainant, on appeal, does not challenge the manner in which the AJ framed the complaint. 2021005297 3 The AJ determined that the underlying allegations in Complainant’s April 2018 complaint involved the same incidents that management previously addressed in January 2018 and found that Complainant accused the Union Steward of sexual harassment despite the fact that he had not made any improper comments to her since January 2018. The AJ ultimately found no persuasive evidence that the Agency failed to schedule Complainant until April 17, 2018 and found that Complainant’s absences in April 2018 were attributable to her leave requests. The AJ also found no evidence that management failed to properly address or investigate the matter. After finding no discrimination on claims 1, 2, and 5, the AJ heard testimony from Complainant and her supervisor regarding claims 3 and 4. In a decision on August 30, 2021, for claims 1, 2, and 5, the AJ incorporated by reference the findings that were made during the hearing. As for claim 3, the AJ found Complainant to be less than credible and found no persuasive evidence that Complainant’s reassignment was based on Complainant’s protected characteristics. To the contrary, the AJ found that: 1) the Union Steward did not harass Complainant in April 2018; and 2) given that the Union Steward had a contractual right to his bid-job under the collective bargaining agreement, there was no reasonable alternative to accommodate Complainant’s desire to be separated from the Union Steward. Finally, the AJ found no persuasive evidence to corroborate Complainant’s contention in claim 4, that her hours and salary were reduced after she reported sexual harassment. 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. This appeal followed. Neither Complainant nor the Agency filed any contentions on appeal. 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. (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). 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. 2021005297 4 Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an 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. Nat’l 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 conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. 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 EEO MD-110, Chap. 9, at § VI.B. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s post- hearing determination that Complainant has not proven discrimination by the Agency as alleged in claims 3 and 4, with respect Complainant’s reassignment, work hours, and salary. In reaching this conclusion, we are mindful that in harassment cases, agencies should generally avoid transferring or reassigning victims of harassment, as such actions could be construed as retaliatory. However, as we find no persuasive evidence that Complainant was subjected to harassment in April 2018, we find that the Agency did not engage in discrimination when it reassigned Complainant to the East Carrier Annex to separate her from the Union Steward. See Jones v. U.S. Postal Serv., EEOC Appeal No. 0120101754 (Aug. 12, 2010) at fn.2 (noting lack of evidence showing that complainant had been subjected to harassment, agency did not discriminate when it reassigned complainant to separate her from the alleged harasser). We note that Complainant has not challenged the AJ’s determination that Complainant expressed a desire to be separated from the Union Steward. Furthermore, we find insufficient evidence to corroborate Complainant’s allegations regarding her work hours and salary. We further conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged with respect to claims 1, 2, and 5. CONCLUSION Accordingly, upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we AFFIRM the Agency’s final action adopting the AJ’s decision. 2021005297 5 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). 2021005297 6 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 March 16, 2023 Date