0120092568
01-22-2010
Neeta S. Sherman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Headquarters), Agency.
Neeta S. Sherman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Headquarters),
Agency.
Appeal No. 0120092568
Agency No. 6L-000-0004-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 5, 2009, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621. For the following reasons, the Commission VACATES the
agency's final decision and REMANDS the complaint for investigation.
ISSUE PRESENTED
Whether the agency properly dismissed complainant's complaint on the
grounds that she failed to state a claim.
BACKGROUND
The record shows that at the time of the alleged discriminatory action,
complainant was employed as a Purchasing & Supply Management Specialist
at the agency's Washington, DC facility. Complainant's contentions arise
from the alleged conduct of her supervisors (S1) and (S2). On April 17,
2009, complainant filed a formal complaint of discrimination on the
bases of age (59) and national origin (Indian) alleging that she was
subjected to a hostile work environment when:
(1) On May 21, 2005, her supervisor (S1) stated "if you don't like
it, go find a job somewhere else," which complainant reported to her
CFO. Complainant subsequently received a disciplinary letter for failing
to follow proper channels to file a complaint, which was not removed
until December 16, 2005;
(2) In October 2006, during a performance review with S1, complainant was
told that her evaluation would be adversely affected by the May 21, 2005
disciplinary letter even though it was applicable for the prior year;
(3) In October 2006, complainant did not receive a SCM Impact savings
award, although it was awarded to two white males who were on the same
team on which complainant was a contributing member;
(4) On November 28, 2008, complainant sent an e-mail to S1 and S2
informing them that she had been approved for three weeks annual leave,
to which S1 responded: "I guess, I don't need the position if she does
not have any work for 4 weeks;"
(5) S1 created a hostile work environment by constantly criticizing
complainant, which had intensified throughout January 2009;
(6) On February 4, 2009, complainant experienced difficulty breathing,
which her medical practitioner attributed to the stress complainant was
experiencing at work;
(7) On February 24, 2009, complainant was intimidated by S1's aggressive
behavior when he walked into complainant's office and demanded that she
have a meeting with him;
(8) On March 3, 2009, complainant did not attend a meeting with S1, for
which she provided medical documentation explaining her non-attendance
of the meeting; in response, S2 informed complainant that he wanted to
meet with her to discuss insubordination;
(9) On March 10, 2009, less than 24 hours after S1 gave complainant an
assignment, S2, along with S1, insisted that complainant was not doing
her work because she had not completed the assignment; in response to
an inquiry by complainant, S2 stood up and raised his voice, stating:
"Don't tell me when and how I should call you! I'm the manager and this
is my office! Get out of my Office!;" and
(10) S2 falsely accused complainant of pressuring clients to send
positive feedback regarding her communication skills, for which S2 warned
complainant: "I am reinforcing this directive that you have been given.
If you choose to ignore this directive a second time, I will take the
necessary action."
On May 5, 2009, the agency issued a final decision dismissing claims
(6)-(10) on the grounds that they failed to state a claim. The agency
did not address claims (1)-(5).1
CONTENTIONS ON APPEAL
The agency raises no new contentions on appeal, maintaining that the Final
Agency Decision should be affirmed. In her appeal brief, as presented
by her representative, complainant contends that the agency improperly
dismissed her claim of harassment on account of national origin and age
because: (i) the agency failed to address multiple incidents related
to complainant's hostile work environment claim; and (ii) the agency
improperly analyzed complainant's claim by finding that complainant had
not shown that she had suffered an adverse employment action such that
she was an "aggrieved" employee.
As raised for the first time on appeal, complainant also contends that
she experienced harassment on two other occasions not previously raised
in her formal complaint: (i) when on April 29, 2009, in a mid-year
evaluation meeting with S1 and S2, complainant was informed that she
was creating a hostile work environment; S2 told complainant to "get a
life" and S1 told complainant that she was focusing "on petty things"
and that she "isn't a team player;" (ii) when in 2005, when S2 removed
complainant's application for a promotion complainant sought to a level
23 position, for which complainant confronted S2, who took complainant to
HR and accused her of insubordination. Complainant contends, the agency
was required, under prevailing precedent, to analyze her claim according
not as discrete, isolated incidents, but as a pattern of incidents which,
taken together, constitute a hostile work environment claim. Accordingly,
complainant argues that the agency's dismissal of her complaint should
be reversed and remanded.
ANALYSIS AND FINDINGS
Initially, the Commission finds that with regard to the two allegations
raised by complainant on appeal, the Commission has held that new
claims may not be raised for the first time on appeal. See Hubbard
v. Department of Homeland Security, EEOC Appeal No. 01A40449 (April
22, 2004). Therefore, we will not consider these matters.
The Commission has held that an agency's failure to address allegations
is tantamount to a dismissal. See Kapp v. Department of Navy, EEOC
Request No. 05940662 (January 23, 1995). Our review of the record
indicates that the agency did not address claims (1)-(5) as raised by
complainant in her formal complaint. As indicated by complainant on
appeal, "[t]he agency was not free to simply ignore certain claims for
reasons that it kept to itself." We find that by failing to address
these incidents, the agency improperly fragmented complainant's hostile
work environment claim.2 Therefore, we find that the agency's decision
dismissing complainant's complaint was improper.
CONCLUSION
Accordingly, we VACATE the agency's dismissal of claims (6)-(10),
and we remand claims (1-10) to the agency in order for it to address
complainant's entire hostile work environment claim in accordance with
the order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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 (K1208)
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 (M1208)
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), 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 (R0408)
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 (Z1008)
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
____1/22/10______________
Date
1 The record indicates that complainant did not raise these matters in
EEO counseling, but they were in her formal complaint.
2 The Commission has consistently held that when confronted with a claim
like this, the agency cannot ignore the pattern aspect of the claim and
define the issues in a piecemeal manner. See Ferguson v. Department of
Justice, EEOC Request No. 05790792 (March 30, 1999); Meaney v. Department
of Treasury, EEOC Request No. 05940169 (November 3, 1994).
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0120092568
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120092568