EEOC Appeal 2020000590

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ardelia I.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2020000590
Hearing No. 420-2019-00052X
Agency No. 4G-350-0090-18
DECISION
The Equal Employment Opportunity Commission (EEOC) accepts the September 26, 2019,
appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 12, 2019 final order
concerning 	an 	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
During the period at issue, Complainant worked as a Clerk/Lead Sales and Service Associate, PS-
07, at the Agency’s Bluff Park Finance facility in Birmingham, Alabama.
On June 26, 2018, Complainant filed a formal complaint. Complainant claimed that the Agency
subjected her to discriminatory harassment based on race (African-American), sex (female), age
(65), and in reprisal for prior protected activity (EEOC Appeal No. 0120141554). In support of
her claim of ongoing harassment, Complainant cited to the following incidents:
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.

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1. 	since March 2017, and specifically on August 29, 2017, October 27, 2017, and on March
14, 2018, Complainant has been subjected to verbal harassment and having her space
blocked;
2. 	on March 14, 2018, Complainant was placed “off the clock” in a non-duty without pay
status after an altercation with a co-worker; and
3. 	on June 4, 2018, Complainant’s manager asked her to drop her complaint since she was
getting ready to retire soon.
Complainant claimed that, since March 2017, she was harassed by one of the custodians
(Custodian). She stated that the Custodian blocked her work space entrance and called her a
“motherfucker”, “old”, and “ugly,” followed by Complainant’s name on August 29 and October
27, 2017. Complainant stated that a city carrier (CC) witnessed the exchange between her and
Custodian on August 29, 2017, and that CC told Custodian to stop. Complainant also asserted that,
on March 14, 2018, Custodian hit Complainant in the chest. Complainant claimed that she called
the police and filed a police report. On March 15, 2018, an investigative interview was conducted
in which Complainant testified that the altercation began when she passed between Custodian and
a garbage can and Custodian said that Complainant pushed her. Complainant stated that she did
not speak to Custodian because she was not “allowed to say anything to her since March 2017.”
Complainant testified that, at this point, Custodian began cursing at Complainant and Complainant
decided to call the police. As a result of the alleged altercation, Complainant and Custodian were
both placed off the clock in a non-duty without pay status. Complainant also stated that since
March 2017, she had contacted ten individuals in management, including the Postmaster, about
the ongoing issues between her and Custodian, since March 2017.
Complainant stated that, on June 4, 2018, the Manager of Customer Service (MCS) (African
American male, age 62) asked Complainant to drop her complaint because she would retire soon.
Following an 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 August 15,
2019, the Agency filed a Motion for Summary Judgment. On September 3, 2019, the AJ issued a
decision, by summary judgment, in favor of the Agency. On September 12, 2019, the Agency
issued a final order adopting the AJ’s finding of no discrimination.
The instant appeal followed. On appeal, Complainant does not submit any timely statements or
briefs in support of her appeal.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.

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56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to
determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at
249. 	At the summary judgment stage, the judge must believe the non-moving party’s evidence
and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue
of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case.
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. Here, Complainant
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates such a dispute.
Harassment - Claims 1 and 2
To establish a claim of discriminatory environment harassment, Complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her 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. 	See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).
In other words, Complainant must establish that she was subjected to conduct that was either so
severe or so pervasive that a “reasonable person” in Complainant’s position would have found the
conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because
of a protected basis – in this case, her race, sex, age, and in reprisal for prior protected EEO activity.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself. For the reasons discussed below, we find that, even construing
any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder
could not find in her favor.
Complainant stated that, on several occasions since March 2017, Custodian verbally harassed
Complainant, and blocked Complainant’s work space. Complainant specifically referenced the
dates of August 29 and October 27, 2017, and March 14, 2018. Custodian denied Complainant’s
version of events. CC, who Complainant stated witnessed the August 29, 2017 incident and
intervened to stop Custodian’s verbal harassment of Complainant, testified that he did not recall
the incident. Custodian acknowledged that she and Complainant did not get along and that, on
March 14, 2018, Complainant pushed Custodian when Complainant attempted to squeeze between
Custodian and a garbage can.

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Custodian denies hitting Complainant in her chest. There is no evidence in the record to
corroborate either account of what occurred on August 29, 2017, October 27, 2017, or March 14,
2018.
Management officials testified that an investigation into the March 14, 2018 incident occurred.
The testimony of Custodian and Complainant led MCS’s supervisor to believe that Complainant
was the aggressor in the March 14, 2018 incident. Custodian was still moved so that she and
Complainant would not continue to have any possible run-ins. While Complainant claimed that
she wrote to ten management officials about the ongoing harassment from Custodian, the record
does not contain any evidence of this assertion.
MCS testified that he did put both Complainant and Custodian in an off-duty without pay status
on March 14, 2018. MCS also testified that he verbally agreed to rescind the March 14, 2018 status
so that Complainant could be paid for that time. Complainant does not provide evidence, and the
record does not support, that MCS put her in an off-duty without pay status based on discriminatory
animus based on Complainant’s race, sex, age, and/or retaliation. In fact, MCS treated Custodian
and Complainant equally by putting the in the same pay status, even though the investigation did
not support Complainant’s version of events and may have even led to an adverse conclusion
against Complainant. In the end, MCS stated that he rescinded the non-pay status of Complainant.
Complainant has not provided any evidence to demonstrate that MCS’s motivation in placing
Complainant in an off-duty without pay status was Complainant’s race, age, sex, and/or reprisal
for prior protected EEO activity.
Alleged Interference with EEO Rights – Claim 3
Complainant also stated that, on June 4, 2018, MCS attempted to deter her from pursuing the
instant EEO complaint. MCS, however, testified that he never asked Complainant to drop her EEO
complaint. He also averred that he never discussed Complainant’s age or retirement with her.
Complainant does not provide any corroboration through documentation or witnesses that MCS or
any other management official attempted to dissuade Complainant from pursuing her EEO
complaint. The ultimate burden of proof lies with Complainant to prove unlawful retaliation and
she has failed to do so.
CONCLUSION
The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED.

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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.

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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, Director
Office of Federal Operations
September 14, 2020
Date