0120170416
08-02-2018
Regena L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Regena L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120170416
Agency No. 4K-210-0038-16
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 14, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, we AFFIRM the Agency's final agency decision (FAD), which found that Complainant did not demonstrate that she was subjected to discrimination as she alleged.
ISSUES PRESENTED
The issue presented is whether the FAD erred in finding that management properly addressed Complainant's sexual harassment claim, and erred in finding that Complainant was not subjected to discrimination when she was placed on Absent Without Official Leave (AWOL) status.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Parkville Post Office in Parkville, Maryland. On March 30, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (anxiety, depression, and back problems), and reprisal for prior protected EEO activity when:
1. On February 2, 2016, after reporting that she was sexually harassed, management failed to properly address the matter (sex and retaliation); and
2. On March 26, 2016, she was charged with being AWOL, (disability and retaliation).2
Following an investigation by the Agency, Complainant had the option of requesting either a hearing before an Equal Employment Opportunity Administrative Judge or a final decision by the Agency. Because Complainant failed to request either a hearing or a final decision, the Agency issued the FAD. In its FAD, the Agency found that Complainant failed to show that management did not properly address her sexual harassment claim. Specifically, the record showed that Complainant alleged that she was sexually harassed by C-1, a male coworker, on two occasions. The first incident occurred in August 2013, when C-1 exposed his penis to her during a Facetime phone conversation. According to Complainant, she was "pissed," and took a screenshot of the image before hanging up. The following day she told him that his behavior "was not cool." She did not, however, report the incident to management.
Complainant indicated that the second incident occurred on March 12, 2015, after a work celebration. She indicated that C-1 followed her to her car and jumped in. He told her that he was pouring his heart out to her. She told him that he was a married man and was being disrespectful. Following this incident, Complainant reported both incidents to management. She requested that her former manager not be involved in the investigation because he had been involved in a prior complaint that she had filed. Nevertheless, he was assigned to the investigation. Because of Complainant's allegations, C-1 was placed on administrative leave, and was transferred to another location. He was also told to stay away from Complainant, and an investigation was initiated.
Complainant listed six witness to be interviewed. Complainant argued that the investigation was unfair as she was not allowed to submit documentation unlike C-1. Specifically, she was told that the picture of C-1's penis was not necessary because he admitted sending her the picture. C-1, however, denied the second incident. He maintained that he and Complainant had a flirty relationship which included the exchange of suggestive photos and when he told her that he was going to work things out with his wife, she made the allegations against him. C-1 indicated that he had requested a meeting with management to discuss his working relationship with Complainant, but she refused the meeting and filed the instant complaint.
Complainant maintained that her former supervisor asked her inappropriate questions about whether she and C-1 were a couple, which she believed to be unfair. Management maintained that once it became aware of her allegations in November 2015, several years after the first incident, it took swift action to separate the parties and investigate the matter. According to the Agency, the investigation found that Complainant was unable to demonstrate that she was subjected to sexual harassment. The evidence collected from C-1's phone showed the date and times of his calls, picture messages, and texts to and from Complainant's phone during this period; the phone records also identified the length of the calls, which lasted from between 1 and 112 minutes. In whole, the phone records indicated that Complainant made 149 calls for 2,888 minutes (48.13 hours) and C-1 made 57 calls for 828 minutes (13.80 hours) during the identified period. Additionally, Complainant's witness did not all support her allegations. Complainant also did not show that the sexual harassment continued after she complained to management. The Agency found that the evidence demonstrated that management quickly commenced a thorough investigation and attempted to speak with all of the witnesses identified. The Agency found that Complainant failed to demonstrate that management failed to take corrective once they were aware of the incident or that management failed to properly address her claim.
With regard to Complainant's claim regarding being placed on AWOL, the Agency explained that Complainant was listed as AWOL because she did not submit a leave slip or call. Subsequently, she submitted a leave slip, but dated it incorrectly. The Agency indicated that once Complainant submitted the proper leave form, her leave was changed from AWOL to sick leave. The Agency maintained that it articulated legitimate nondiscriminatory reasons for its actions, and Complainant did not show that the reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant did not submit a brief on appeal. The Agency maintains that assuming arguendo that Complainant established a prima facie case of discrimination as to all of her bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant did not show that the reasons were pretext for discrimination. Further, the Agency maintained that it properly analyzed Complainant's sexual harassment claim and found that it took immediate and effective action with regard to her claims.
ANALYSIS AND FINDINGS
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). With respect to element (5), in the case of co-worker 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. Id.
Assuming for the purposes of this decision that Complainant established elements (1) - (4) of a harassment claim, we find that she is unable to establish element (5) and therefore her claim fails. There is no dispute that that first incident was never brought to the attention of management. When it was made aware of the second incident, which occurred months later, management took prompt and effective corrective action. C-1 was placed on administrative leave, and was transferred to another location. He was also told to stay away from Complainant, and an investigation was initiated. There is no evidence that C-1 engaged in additional conduct of this nature towards Complainant, after the Agency was made aware of his behavior and took action to stop it.
While we are mindful of Complainant's concerns that the investigation was unfair, we note that she was given the opportunity to have an EEOC administrative hearing. Complainant, however, did not take advantage of this opportunity. Had Complainant requested a hearing before an Administrative Judge, the Administrative Judge could have made credibility determinations based on witness testimony and allowed her to conduct discovery. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
Further, with respect to Complainant's allegation that she was incorrectly placed in AWOL status, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination regarding all of her bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant did not demonstrate that the Agency's reasons were pretext for discrimination. Accordingly, we find the preponderance of the evidence of record does not establish that discrimination occurred.
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 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
_8/2/18_________________
Date
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.
2 Initially, Complainant included one additional allegation but it was dismissed for failure to state a claim. Complainant does not dispute the dismissal on appeal, as such it will not be addressed herein.
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