0120070452
03-27-2007
Rhonda Oliver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070452
Agency No. 4H-390-0092-06
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated September 20, 2006, 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., 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.
According to complainant, she is a full-time limited duty employee.
She indicates that her limited duty job is to work at the window no
more than four hours a day, and perform other duties the remainder of
the day.
The FAD characterized complainant's complaint as alleging that she
was subjected to discrimination based on her sex (female), disability,
and age (born in 1954) when:
1. on May 23, 2006, her supervisor questioned her duties in her limited
duty position; demeaned and berated her about her work performance in
front of her peers and customers, and changed her duties, and
2. on June 27, 2006, her supervisor followed and screamed at her about
causing him to use 5 minutes of overtime.
The FAD dismissed complainant's complaint for failure to state a claim.
It reasoned that complainant was not legally aggrieved or harmed.
29 C.F.R. � 1614.107(a)(1). A review of the complaint, however,
shows complainant alleged harassment by the supervisor since January
20, 2006, when he started questioning her job, over time stripped her
of some duties not involving certain window work, monitoring her in
a harassing fashion, and repeatedly verbally demeaning and treating
her with extreme disrespect, including hollering at her in front of
co-workers and customers.1 For example, complainant claimed that upon his
arrival as the Officer-in-Charge, on January 20, 2006, her supervisor
told her she was only performing duties because she was a limited
duty rehabilitation employee, not because she was a capable, trained,
or qualified employee. Complainant indicated this referred to certain
non-window duties. Complainant indicated that the supervisor reduced or
eliminated her duty of ordering supplies, processing certain paperwork,
and so forth. Complainant claimed that outside certain window duties,
her supervisor accused her of being unproductive and would comment
that if she had nothing to do, she would be sent elsewhere, when in
fact the supervisor tried to stop her from doing anything but certain
window duties. Complainant alleged that on May 23, 2006 and June 27,
2006, the supervisor hollered at her in a demeaning fashion in front
of customers, once regarding a change of address and package package,
and once regarding a scheduling overtime issue. Regarding the May 23,
2006, incident, a customer wrote a letter that the supervisor chewed out
and reprimanded complainant in front of him, which was uncomfortable.
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. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
Applying the above standards, we find that complainant's complaint states
a claim of hostile work environment from January 20, 2006 forward.
Accordingly, the FAD is reversed, and the agency is ordered to take the
following actions.
ORDER
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. Specifically, complainant claims that she was
discriminated against based on her sex (female), age (born in 1954)
and disability (neck and shoulder) that she was subjected to a hostile
work environment since January 20, 2006, in that her supervisor started
questioning her job, over time stripped her of some duties not involving
certain window work, monitoring her in a harassing fashion, and repeatedly
verbally demeaned her and treated her with extreme disrespect, including
hollering at her in front of co-workers and customers. The agency shall
acknowledge to the complainant that it has received the remanded claim
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 27, 2007
__________________
Date
1 This claim is apparent from complainant's complaint, albeit she further
clarified her claim on appeal by further explaining her job and adding
examples.
??
??
??
??
2
0120070452
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070452