0120111094
01-26-2012
Amanda M. Peredetto, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Amanda M. Peredetto,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120111094
Agency No. 4B020009910
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated November 24, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Transitional Employee at the Agency’s Waban Branch facility in
Waban, Massachusetts.
On November 2, 2010, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the basis of sex
(female) when:
1. from on or about June 30, 2010, through July 26, 2010, the
Complainant’s supervisor sent her sexual text messages, some of which
were personally threatening in nature; and
2. on July 9, 2010, the Complainant’s supervisor verbally threatened
her with the loss of her job if she took sick leave.
The record indicates that on July 22, 2010, Complainant availed herself
of the Agency’s negotiated grievance process in an attempt to resolve
her concerns. Subsequently, on July 27, 2010, Complainant sought EEO
counseling. When informal attempts to resolve her concerns failed,
Complainant filed a formal discrimination complaint on November 2, 2010
as indicated above. On November 24, 2010, the Agency issued a decision
dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1),
for failure to state a claim. Specifically, the Agency determined that
Complainant failed to demonstrate that she had been subjected to harm
with respect to the terms and conditions of her employment by the alleged
conduct of her supervisor.
The instant appeal followed. On appeal, Complainant provides the
Commission with a copy of an arbitration award dated September 2, 2011,
finding that the Agency violated Article 19 of the Agency’s agreement
with the Union as well as the Joint Statement/Zero Tolerance with respect
to Complainant’s allegations of sexual harassment. Pursuant to the
arbitration award, Complainant’s supervisor was required to complete
a sexual harassment training course. Complainant’s supervisor was
further ordered to apologize to the Complainant in writing for his
conduct. The Agency was ordered to review the corrective action taken
by the arbitrator and to determine if any further action was warranted
in light of the finding that the actions of Complainant’s supervisor
violated the Zero Tolerance Policy between the Agency and the Union.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an Agency shall dismiss a complaint that fails to
state a claim. An Agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he 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,
§ 1614.106(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).
Following a review of the record, we find that Complainant's contentions
state a claim of employment discrimination. The only questions for an
agency to consider in determining whether a complaint states a claim are:
(1) whether the complainant is an aggrieved employee and (2) whether
complainant raises employment discrimination on a basis covered by EEO
statutes. If these questions are answered in the affirmative, an agency
must accept the complaint for processing regardless of its judgment
on the complaint's merits. See Odoski v. Department of Energy, EEOC
Appeal No. 01901496 (April 16, 1990). In the instant matter, Complainant
alleges that she was subjected to ongoing sexual harassment based on
her gender when her supervisor sent her text messages of a sexual nature
which Complainant found threatening and when her supervisor threatened
Complainant with the loss of her job if Complainant took sick leave. In
further support of Complainant’s contention that her concerns state a
claim of discrimination upon which relief can be granted, she has provided
the Commission with a copy of the arbitration award which found that the
conduct of Complainant’s supervisor violated Agency policy. In that
regard, and based on a thorough review of the record, the Commission
finds that the Agency improperly dismissed Complainant’s complaint in
accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(1).
Accordingly, the Agency's final decision dismissing Complainant's
complaint for failure to state a claim is REVERSED. Complainant’s
complaint is REMANDED to the Agency for processing in accordance with
this decision and the Order below.
ORDER (E0610)
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 (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 26, 2012
__________________
Date
2
0120111094
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111094