0120101556
07-22-2010
Yolande Ramey-Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yolande Ramey-Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120101556
Agency No. 4J600012209
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 14, 2010, 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.
BACKGROUND
In her complaint, Complainant alleged that she was subjected to
discrimination on the bases of sex (female), disability (Carpal Tunnel
Syndrome), and age (43 years at time of incident) when:
1. On September 231, 2009, the Postmaster (PM) prevented Complainant
from leaving the parking lot with her children by deliberately blocking
her car for over 30 minutes and refusing to move his own vehicle despite
repeated pleadings from Complainant and others, and on another occasion
Complainant heard from others that PM once told them that he was "the
new HNIC which stands for Head Nigger In Charge."
The Agency addressed only the incident concerning Complainant's car
being blocked and dismissed the claim for failure to state a claim,
finding that, while PM's behavior could not be condoned, the action
was insufficiently severe to state a claim of harassment. On appeal,
Complainant argues that PM continues to harass herself as well as others,
and that he has cut her work hours. The Agency argues that Complainant
is trying to expand the harassment claim, and requests that we affirm
the FAD.
ANALYSIS AND FINDINGS
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).
Following a review of the record, we find that Complainant's allegations,
including the allegation that she heard from others that PM made the
"HNIC" statement, are severe enough to state a claim of harassment.
Complainant has presented evidence that, despite repeated entreaties
from herself and a Postal supervisor, PM stubbornly refused to move the
vehicle he used to block Complainant's vehicle for over thirty minutes.
In addition, Complainant alleges that PM once told other employees
"that he was the new HNIC, which stands for Head Nigger In Charge."
See Formal Complaint, Attachment, p. 5. The Commission finds that such
use of language, even when not heard by Complainant, or directed at
Complainant, is sufficient to state a claim of harassment. We therefore
REVERSE the FAD and REMAND the claim for further processing in accordance
with the ORDER below.
ORDER (E0408)
The Agency is ordered to process the remanded claim in accordance with 29
C.F.R. � 1614.108. 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 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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.
RIGHT TO REQUEST COUNSEL (Z0408)
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
July 22, 2010
__________________
Date
1 The FAD provides the date as September 24, but Complainant consistently
states that the incident occurred on September 23, 2009.
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0120101556
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120101556