Reference #: 0120142154 Julissa Torres 1904 Richmond Rd Staten Island, NY 10306 Reference #: 0120142154 U.S. Postal Service (Northeast) NEEOISO - Appeals U.S. Postal Service PO Box 21979 Tampa, FL 33622-1979 Larita G.1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120142154 Agency No. 4B-110-0057-13 DECISION Complainant timely filed an appeal from the Agency's April 21, 2014, 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's procedural dismissal, VACATES the final decision finding no discrimination and REMANDS the complaint to the Agency for further processing, as described below. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Agency's Brooklyn, New York, Post Office (Midwood Station). Complainant had an unblemished disciplinary record for sixteen years of her employment with the Agency. In October 2012, a new supervisor (S1) and manager (S2) joined the station. Complainant asserts that, soon after the arrival of S1 and S2, a coworker (female, no prior EEO complaint activity) (CW1) informed S1 and S2 that Complainant was a lesbian, and that CW1 began to make derogatory remarks about gay individuals. Complainant alleged that management grinned and laughed at the remarks, and by not stopping CW1 from making the remarks showed that they condoned the remarks. Complainant stated that in October 2012, she was told by management not to sweep her cases. However, when the final bell was given, she was scolded for not sweeping her cases. Additionally, if Complainant left her case, she was called over the public address system in what she described as a humiliating and condescending manner. Complainant stated that no other carriers were treated this way. On January 23, 2013, Complainant was issued a Letter of Warning (LOW) for failure to perform duties; more specifically, casing flat mail from the ledge. Complainant stated that S1 accused her of time-wasting activities because she cased her flat mail from her desk. A Dispute Resolution Team (DRT) reduced this to a non-disciplinary discussion. On January 28, 2013, S4 issued Complainant a seven-day suspension for failure to follow instructions when she failed to fold her cart. Complainant acknowledged that she did not fold her cart but stated that many carriers do not fold their carts and that she was the only one disciplined. The DRT concluded that this rule had not been applied consistently to all employees; the suspension was rescinded and removed from Complainant's file. On February 4, 2013, S1 issued Complainant a 14-day suspension for failure to follow instructions when she was listening to her radio while on her break during street delivery. Complainant stated that she had never been told in the past that she cannot listen to the radio while on her break. On February 12, 2013, Complainant was scrutinized for wearing her summer shirt. Complainant noted that many carriers were wearing their summer shirts, but that she was the only one who was singled out and scrutinized. Also on February 12, 2013, S2 issued Complainant a 14 day suspension for failure to perform her duties when she left her cart unattended. Complainant stated that her cart was within her sight at all times and that she made sure no one was around before she left the cart to deliver mail to a house across the street. The DRT ordered this suspension to be rescinded because S2 was both a witness and the concurring official to the disciplinary action; therefore, Complainant was not able to have the discipline examined in an objective and fair manner. On February 14, 2013, a supervisor and a manager allegedly walked Complainant's entire route with her and she was scolded for fingering the mail incorrectly. She was instructed that if she needed the bathroom she would have to use her break, and a male supervisor (S4) allegedly followed her to the bathroom and stood outside the door until she finished. On February 21, 2013, S2 allegedly yelled at her for taking 11 minutes in the bathroom. On February 25, 2013, S1 and S2 decided to move Complainant's route case directly across from S1's desk, allegedly for the purpose of additional scrutiny. Complainant stated that she was subjected to many anti-gay and sexual remarks by CW1. For example, on March 5, 2013, CW1 and S1 were having a conversation within a foot of where Complainant was standing and CW1 stated, "You know, if you were a lesbian I would lick you." Complainant stated that S1 laughed at the statement and did not correct CW-1's sexually-offensive behavior. Also on March 5, 2013, Complainant was walked on her route by S4 and was yelled at for not using her blue bag to separate "overs" while delivering mail, even though there is no such agency directive. On March 9, 2013, CW1 responded to a question from another supervisor (S3) by saying, "It belongs to the little boy on 39 route." Complainant is the carrier on the 39 route. S3 allegedly grinned at the remark and did not correct CW1's behavior. On March 13, 2013, Complainant contacted an EEO Counselor. On March 27, 2013, CW1 shouted in Complainant's presence, "The only sexy girl in here is [another female coworker (CW2)]. I'll hit that [expletive]. I'll turn you out, you my bitch." When a coworker told CW1 not to talk that way, she allegedly replied that she is friends with S1 and would not get in trouble. Also on March 27, 2013, S1 approached Complainant from behind and yelled "What are you doing with the mail?" When Complainant said that she was tying up her mail, S1 allegedly said that a temporary employee could have tied up the mail in ten minutes. On April 30, 2013, CW1 told CW2 in Complainant's presence, "You know I [performed a specific sexual act on CW2] on New Year's Day." When CW2 responded "Yeah, you wish," CW1 stated that she (CW2) was just embarrassed and that S1 knows because CW1 tells S1 everything. Also on that day, when a male carrier asked another carrier a question, CW1 yelled across the room "I know what he wants, he wants a dildo, just like the other little boys in here." CW1 also yelled on this day, "There are a bunch of rats in here," which Complainant believed was a reference to her EEO activity. On May 1, 2013, S1 and S2 were made aware that Complainant had contacted an EEO Counselor. Complainant was absent from work on May 2 and 3, 2013. When Complainant returned to work on May 4, 2013, CW1 stated to other employees, "Watch what you say, she's here." Complainant believed this was in reference to her EEO activity. On May 4, 2013, S2 counseled Complainant about her attendance and told her that she would have to provide documentation for any future absences. Complainant alleged that her attendance was good and that she was never talked to about her absences in the past; in contrast CW1 had very poor attendance and was never subjected to heightened scrutiny or required to bring in documentation. On May 6, 2013, Complainant was given a Letter of Warning (LOW) for missing a scan-point more than 30 days before, on April 3, 2013. The LOW was given to her on the workroom floor instead of in the privacy of a manager's office. Complainant stated that no carrier should be disciplined for missing a scan-point because there are technical glitches with the scanner and computer readings. The DRT ultimately reduced this to a discussion. Also on May 6, 2013, S2 took a picture of Complainant's case with S1's cell phone, and did not give a reason why he took the picture. Also on May 6, 2013, S4 and another supervisor (S5) walked her route, even though she is not supposed to be followed by two supervisors. As he walked her route, S4 allegedly said, "How many times do I have to tell you how to do your overs?" S4 also examined a customer's package after Complainant went back to get the signature for delivery. Also on May 6, 2013, CW1 brought back accountable mail and packages instead of delivering them on Complainant's route. Complainant was informed by another coworker that CW1 stated an intention to "destroy" Complainant's route every time CW1 worked on it. On May 20, 2013, S2 asked Complainant if she could make it easier for him and remove the cell from the case "like all of the other guys." Complainant responded, "I am not a guy, I am a lady" to which S2 allegedly replied, "So that's why you have to be so difficult." Beginning on May 31, 2013, Complainant alleged that she was not allowed to train a new City Carrier Assistant. Complainant stated that when S2 noticed her training the City Carrier Assistant, she told S4 to send him out with another Carrier instead of Complainant, even though Complainant was the only on-the-job instructor (OJI) at the station. The City Carrier was returned to Complainant after union intervention. On June 6, 2014, Complainant received a pre-disciplinary interview (PDI) and she was threatened with removal by S1 when she submitted a PS Form 3996 which requested 30 minutes of overtime. Complainant stated that she followed S1's instructions by filling out the PS Form 3996. On June 19, 2013, S1 issued Complainant a seven-day suspension for failure to follow instructions when she did not "strap out" correctly and engaging in time wasting activities such as making small bundles of mail and rubber-banding private houses separately. Complainant alleged that management would yell at her for the most mundane things. For example, on August 14, 2013, S4 yelled at her that her bundles were too small. On August 26, 2013, S2 yelled at her for wasting time because she used two rubber bands on her bundles. On June 26, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of sex (female, sexual orientation) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. She has been berated on the workroom floor and on her route, and subjected to greater scrutiny than others; 2. On January 23, 2013 she was issued a Letter of Warning for failure to perform her duties; 3. On January 28, 2013, she was issued a seven-day suspension for failure to follow instructions when she failed to fold her cart; 4. On February 4, 2013, she was issued a 14-day suspension for failure to follow instructions when she was listening to her radio; 5. On February 12, 2013, she was issued a 14-day suspension for failure to perform her duties when she left her cart unattended; 6. On or around February 25, 2013, her case was moved directly across from the supervisor's desk; 7. She has been subjected to derogatory, condescending and offensive comments; 8. Beginning on or about May 4, 2013, she has been subjected to offensive comments and gestures concerning her EEO complaint; 9. On May 4, 2013, she was told that her attendance was being watched and documentation was required for all future absences; 10. On May 6, 2013, her manager took pictures of her case with a cell phone; 11. On May 6, 2013, she was issued a Letter of Warning for an incident that occurred on April 3, 2013; 12. Beginning on or around May 31, 2013, she has not been allowed to train a new City Carrier Assistant; 13. On June 6, 2014, she received a pre-disciplinary interview (PDI) and she was threatened with removal; and 14. On June 19, 2013, she was issued a seven-day suspension. 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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision the Agency dismissed Complainant's sexual orientation claim finding that it does not fall under Title VII. Additionally, the Agency found that Complainant's claim 2 was untimely raised and dismissed it. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS 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 parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Sexual Orientation Claim Complainant alleged that she believes she was subjected to discrimination because she is a gay female. The Agency, in its final decision, indicated that this claim could only be processed under its internal procedures concerning sexual orientation discrimination and not through the 29 C.F.R. Part 1614 EEO complaint process. The Agency noted that Complainant did not allege sex stereotyping and only alleged discrimination on the basis of sexual orientation. The Commission has clearly resolved this issue; however, finding that discrimination against an individual because of that person's sexual orientation is discrimination because of sex and therefore prohibited under Title VII. See Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015). In Baldwin, the Commission stated unequivocally that, although Title VII does not explicitly include sexual orientation as a basis for protection under the law, sexual orientation is "inherently a 'sex-based consideration,' and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." Baldwin, at p. 6. In this case, we find that the record states a viable claim of sex discrimination. For example, the record reveals that Complainant believed management discriminated against her after they learned that she was attracted to women. Additionally, she alleged that CW1 referred to her as "the little boy" on more than one occasion, which is an indication that CW1 did not believe Complainant conformed to CW1's views on how a woman should act and look. Further, CW1 allegedly made very vulgar comments about sex with other women in Complainant's presence, which we have found may be an indication that the supervisor believes that women should only have sexual relationships with men. Castello v. U.S. Postal Serv., EEOC Request No. 0520110649 (Dec. 20, 2011). As a result, we reverse the Agency's dismissal of this claim. Timeliness EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (February 11, 1999). The Supreme Court has held that an employee alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l Railroad Passenger Corp v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however, that "discreet discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Finally, the Court held that such untimely discreet acts may be used as background evidence in support of a timely claim. Id. Here, the Agency dismissed allegation 2 because it was a discrete act that was beyond the 45-day time frame allowed by EEOC regulations. After a review of the record, we find that this discrete act was untimely, and as a result is not actionable. However, this act can be used as background evidence in Complainant's overall claim of discrimination and as a result should be discussed on the merits. Remand for Supplemental Investigation We note that there are allegations in the record that, if true, could establish that Complainant was subjected to sexual harassment, sex-based harassment, and reprisal-based harassment. For example, CW1's2 alleged comments were so vulgar that they could be severe enough to constitute a hostile work environment. These comments include a statement in Complainant's presence to CW2 about performing sexual acts on her, such as "You know I [performed a specific sexual act on CW2] on New Year's Day." CW1 also allegedly stated to the whole office, "The only sexy girl in here is [CW2]. I'll hit that [expletive]. I'll turn you out, you my bitch." CW1 also allegedly said to a supervisor while standing one foot away from Complainant, "If you were a lesbian I would lick you." Additionally, when a male carrier asked another carrier a question, CW1 allegedly yelled across the room, "I know what he wants, he wants a dildo, just like the other little boys in here." This statement may have been in reference to Complainant as CW1 allegedly has a history of referring to Complainant as a little boy, such as when she told a supervisor that something "belongs to the little boy on 39 route," which is Complainant's route. CW1 also allegedly made discriminatory comments about Complainant's EEO activity. For example, CW1 allegedly yelled for everyone to hear, "There are a bunch of rats in here." Additionally, the day that Complainant returned to work after management found out that she contacted an EEO Counselor CW1 stated for everyone to hear, "Watch what you say, she is here." If true, these comments are reasonably likely to deter an individual from engaging in the EEO process, and if management were aware of these comments, and failed to take appropriate remedial action, the Agency would be liable. There is evidence in the record that CW1 harbored animus towards Complainant. For example, in its final agency decision the Agency found that CW1 did make at least some of the alleged comments, although it was not clear which comments it found that she made. The Agency also found that CW1 did try to intentionally sabotage Complainant's route by bringing back accountable mail and packages instead of delivering them. While the Agency said that it disciplined CW1 for intentionally not delivering mail and packages to Complainant's route, the Agency did not provide the EEO investigator with any information or documentation to corroborate that CW1 was actually disciplined. Additionally, if Complainant's allegations are true, the Agency may be liable for the harassment, as it is alleged that CW1's sex-based comments were often made to management officials who, instead of correcting the behavior, condoned it by smiling and laughing with CW1. Additionally, many of CW1's alleged sexual comments and comments about Complainant's EEO activity permeated the workplace and were said openly for many individuals to hear; if true, supervisors should have known that it was occurring. After a review of the entire record, we find that the record is incomplete and that a reasonable fact-finder would not be able to make a conclusion based upon the investigation that was conducted. For example, CW1 was never part of the investigation, even though she was named as an individual responsible for creating a hostile work environment. There is no indication in the record that the investigator even attempted to contact her. Additionally, a majority of the witnesses in the investigation were management officials. Complainant provided the investigator with a list of witnesses; however, the investigator indicated that she randomly chose only five witnesses to contact, and only two of those witnesses replied to the investigator. Those two witnesses were asked very general questions and were not asked specifically about Complainant's allegations, including the comments made by CW1. Despite the general and vague questions they were asked, both indicated generally that they believed Complainant was subjected to harassment by management. Moreover, it is not clear from the record whether the three witnesses who did not reply to the investigator still work for the Agency, and if they do, what steps the Agency took to obtain their participation in the investigation. Further, there is no indication as to why the investigator only chose five random witnesses from Complainant's witness list instead of trying to contact all of her witnesses. There is no evidence in the record that would establish that attempting to contact all of Complainant's witnesses would have been overly burdensome to the investigation. As a result, we REVERSE the Agency's procedural dismissal, VACATE its final decision finding no discrimination existed, and REMAND this entire complaint back to the Agency for a supplemental investigation.3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the complaint for further processing by the Agency, in accordance with the ORDER below. ORDER The Agency is ORDERED to conduct a supplemental investigation into Complainant's allegations of a hostile work environment. The bases that will be covered in the supplemental investigation will be sex (female and sexual orientation) and reprisal. The Agency will contact all of the witnesses that Complainant identified and will ask them specific questions about all of Complainant's allegations, and will include specific questions about CW1's alleged conduct and comments and management's knowledge of the conduct and comments. The investigation will also include an affidavit or other sworn testimony from CW1. If CW1 is no longer employed with the federal government, the Agency shall clearly state so in its new final decision. If CW1 refuses to participate, the Agency will explain the steps that it took to obtain her testimony. Complainant shall cooperate with the Agency during the supplemental investigation. If the Agency does not have the list of witnesses that Complainant originally provided to the investigator, Complainant will provide the list of witnesses who may be able to corroborate her allegations. The Agency shall complete the supplemental investigation within 90 days from the date this decision becomes final. Thereafter, the Agency shall give Complainant a copy of the supplemental investigation, provide her an opportunity to respond, and include her response in the supplemental investigation. Within 30 days of the date Complainant is to respond to the supplemental investigation, the Agency shall issue a new final decision based on the evidence gathered in both the original and supplemental investigations. The Agency shall give Complainant appeal rights to the Commission. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 11-18-2015 __________________ 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 While we note that the Agency asserts in its final decision that CW1 may herself be gay, there is nothing in the record to support this conclusion. Further, even if CW1 were gay, this fact is not dispositive of any of Complainant's claims, and would not make CW1's comments any less vulgar or severe. 3 In order to avoid bifurcation of the complaint, we are remanding the entire complaint back to the Agency for further processing. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142154 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142154