Nina M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

May 28, 2020

2019004081 (E.E.O.C. May. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nina M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2019004081 Agency No. 1C-452-0003-14 DECISION On May 20, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 10, 2019 final action concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. During the period at issue, Complainant worked as a Laborer Custodial at the Agency’s Cincinnati Network Distribution Center in Cincinnati, Ohio. Complainant filed two formal complaints on March 5, 2014 and September 30, 2014, respectively. In the formal complaints, Complainant claimed that the she was subjected to harassment/a hostile work environment based on race (Caucasian), sex (female), color (white), disability,2 age (over 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 Complainant identified her disabilities as bipolar disorder and attention deficit disorder. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2 2019004081 40) and in reprisal for prior EEO activity (prior EEO complaint) when:3 1. on or about October 24 and 28, 2013, and November 1, 2013, her co-workers subjected her to harassing, bullying, and threatening behavior and management did not intervene (Agency No. 1C-452-0003-14, hereinafter referred to as “Complaint 1”); 2. on or about November 27, 2013, management issued her a 7-Day Suspension (Complaint 1);4 3. on or about January 15, 2014, someone put a postcard with the word “racist” on her locker and management failed to investigate the incident (Complaint 1); 4. on a date to be specified, someone poured maple syrup down her locker (Complaint 1); 5. on or about February 28, 2014, she had a flat tire (Complaint 1); 6. on or about June 7, 2014, a co-worker accused her of spraying something that made her sick, and management investigated Complainant and co-workers, and supervisors harassed Complainant (Agency No. 1C-452-0020-14, hereinafter referred to as “Complaint 2”); and 7. on or about September 17, 2014, a co-worker threatened Complainant and her supervisor ordered her out of his office when she reported the threat (Complaint 2).5 After its investigation into the two formal complaints, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ consolidated the two formal complaints. Thereafter, the AJ held a hearing on October 5, 2015, January 19 and 20, 2016, May 31, 2016, and June 1, 2016. Following the hearings at which nineteen witnesses testified, the AJ issued a decision finding no discrimination. In her decision, the AJ noted that on January 18, 2001, Complainant was hired as a Laborer Custodian and has worked as a Custodian since February 9, 2002 at the Agency’s Network Distribution Center in Cincinnati, Ohio. 3 For ease of reference, the Commission has re-numbered Complainant’s claims as claims 1-7. 4 As a result of Complainant’s grievance, the 7-Day Suspension was reduced to a Letter of Warning to be expunged in July 2014 if there was no interim discipline issued. 5 The record reflects that claims 6 -7 were later amended to the instant formal complaint. 3 2019004081 Her duties include cleaning stocking supplies, moving furniture, and miscellaneous other duties. The AJ further noted that Complainant spent a lot of time in the locker room, not just her breaks and lunch hour. Other employees avoided Complainant because of the way that she talked to some of the female employees in the locker room. The AJ noted that in regard to claim 1, the credible evidence established that Complainant brought upon herself the negative behavior that her co-workers exhibited during the relevant period. The AJ stated “there is nothing tying the negative environment she experienced to any of her protected bases, nor to her prior EEO activity. Rather, the credible evidence points directly to Complainant’s conduct as the reason she was not getting along with various coworkers, they began avoiding her, and a rumor started going around the facility that [Complainant] was a racist.” Regarding claim 2, the AJ noted that after the Supervisor, Maintenance Operations (Supervisor 1) conducted a pre-disciplinary interview of Complainant regarding her conduct on October 28, 2013, and she was issued a 7-day suspension for improper conduct. Supervisor 1 noted that Complainant “stormed into the Tour 2 Maintenance Supervisor’s Office…and referred to [Mail Handler’s] family by using the racially derogatory term ‘nigger,’” The Acting Maintenance Manager reviewed the statements of three co-workers who witnessed Complainant’s comment and concurred in the discipline issued. The AJ noted in regard to claim 3, Complainant had a postcard with the picture of the Eiffel Tower on her locker. In January 2014, someone wrote “racist” on the postcard, and Complainant reported the matter to management. The postal inspectors determined that the matter would be handled by local management because it was not deemed an actual assault or threat of physical harm. Another Supervisor, Maintenance Operations (Supervisor 2) investigated the incident and talked to Complainant and she did not say who she thought had put the writing on the postcard. Complainant never told Supervisor 2 that she was being harassed during the relevant period. Regarding claim 4, the AJ noted that while Complainant was on leave, someone poured syrup on her locker. Another custodian cleaned the mess so that Complainant would not be upset when she returned to work. Regarding claim 5, the AJ determined that there was no credible evidence that anyone had anything to do with Complainant having a flat tire. Regarding claim 6, the AJ noted that the Custodian accused Complainant of spraying something in the locker room when smelled strange. Management did ask Complainant whether she sprayed something but there was no evidence that anyone harassed her. Regarding claim 7, the AJ noted that the evidence does not indicate that Custodian “threatened” Complainant nor that her supervisor ordered her out of her office when she reported the September 17, 2014 incident. The AJ noted that the Custodian approached Complainant at the time clock, pointed at her, and said “You stay away from me. You stop harassing me. You stop following me. I can’t even go to the bathroom with you around.” Moreover, the AJ determined that while Complainant was not a credible witness, she found the other witnesses to be credible. 4 2019004081 For instance, the AJ noted that Complainant was not credible in her testimony “alleging that she was only repeating what [Mail Handler] had said when she used the N-word on October 28, 2013. [Complainant] alleged that she told [Supervisor Maintenance Operations (Supervisor 3)] “[Supervisor 3], [Mail Handler’s] the one that started the whole thing. She’s the one who called her husband a N-----.’” The AJ determined that this explanation did not even make any sense and all other witnesses in the incident were more credible in their testimony regarding the incident. The Agency issued its final action adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 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 determination that Complainant has not proven discrimination by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s decision finding no discrimination 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. 5 2019004081 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. 6 2019004081 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 May 28, 2020 Date