Celeste L. Guice, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionJan 30, 2012
0120113857 (E.E.O.C. Jan. 30, 2012)

0120113857

01-30-2012

Celeste L. Guice, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.




Celeste L. Guice,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120113857

Agency No. 1G-336-0010-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated July 13, 2011, dismissing her complaint of unlawful

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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Mailhandler at the Agency’s Processing and Distribution Center

facility in Tampa, Florida.

On June 28, 2011, Complainant filed a formal complaint alleging

that the Agency subjected her to discrimination on the bases of race

(African-American), sex (female), color (Black), and reprisal for prior

protected EEO activity under Title VII of the Civil Rights Act of 1964.

When it acknowledged receipt of the complaint, the Agency defined the

issue in the complaint as discrimination/retaliation when, on March 21,

2011, Complainant discovered that management had marked her as “deems

desirable”1 for her Family Medical Leave Act (FMLA) related absences.

The Agency dismissed the complaint, pursuant to 29 C.F.R. §

1614.107(a)(1), for failure to state a claim. The Agency found that

Complainant had failed to establish that she was aggrieved when she was

placed on the “deems desirable” list without prior notification.

As such, the Agency found that Complainant did not state a viable claim

of discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

An agency shall accept a complaint from any aggrieved employee

or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. §§

1614.103, .106(a). The Commission's federal sector case precedent has

long defined an "aggrieved employee" as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Department of the Air Force, EEOC

Request No. 05931049 (April 21, 1994). When the complainant does not

allege he or she is aggrieved within the meaning of the regulations,

the agency shall dismiss the complaint for failure to state a claim

pursuant to 29 C.F.R. § 1614.107(a)(1).

In order to review the Agency’s decision to dismiss, the definition

of Complainant’s claim(s) raised in her complaint must first be

addressed. The Agency, in its dismissal decision, has confined the

claim to Complainant’s placement on the “deems desirable” list

without prior notification, requiring medical documentation for her

FMLA absences. However, on appeal, Complainant has submitted a document

entitled “Timeline of Claims Cited,” that details a number of other

incidents that occurred between March and July 2011 in addition to the

“deems desirable” allegation. This timeline suggests that Complainant

is actually raising an allegation of ongoing discriminatory/retaliatory

harassment rather than solely the issue defined by the Agency.

In its response to the appeal, the Agency argues that these other

incidents were not raised in Complainant’s formal complaint. However,

an examination of the formal complaint form reveals that Complainant

specifically referenced her “pre-complaint” when asked to explain

her claim. The pre-complaint EEO Counselor’s report case shows that

in addition to the “deems desirable” issue, Complainant claimed that

during this same time period she was having other difficulties with

her leave, management was not accommodating her medical restrictions,

and she was placed off work. We find that these allegations, raised

during counseling and incorporated by reference in the formal complaint,

directly relate to the timeline submitted on appeal. A fair reading

of these documents together show that the Agency failed to recognize

Complainant’s claim as one of ongoing discriminatory/retaliatory

harassment by management.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993),

the Supreme Court reaffirmed the holding of Meritor Savings Bank

v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if

it is sufficiently severe or pervasive to alter the conditions of the

complainant's employment. We find that Complainant has, in fact, raised

a viable claim of ongoing discriminatory/retaliatory harassment, of which

the “deems desirable” allegation is but one example. Therefore,

the Agency erred in dismissing the complaint for failure to state a claim.

Accordingly, the Agency’s dismissal is REVERSED and the complaint is

REMANDED to the Agency for further processing in accordance with the

following Order.

ORDER (E0610)

The Agency is ordered to process the remanded claims (ongoing harassment)

in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall

acknowledge to the Complainant that it has received the remanded claims

within thirty (30) calendar days of the date this decision becomes final.

The Agency shall issue to Complainant a copy of the investigative file

and also shall notify Complainant of the appropriate rights within one

hundred fifty (150) calendar days of the date this decision becomes

final, unless the matter is otherwise resolved prior to that time.

If the Complainant requests a final decision without a hearing, the

Agency shall issue a final decision within sixty (60) days of receipt

of Complainant’s request.

A copy of the Agency’s letter of acknowledgment to Complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

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 (M0610)

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 9-18 (November 9, 1999).

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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time limits

as stated in the paragraph above (“Right to File a Civil Action”).

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

January 30, 2012

__________________

Date

1 The record reflects that being marked “deems desirable” means that

medical documentation may be required to support an employee's absences.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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