0120080823
05-09-2008
Ann M. King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ann M. King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080823
Agency No. 4F-926-0307-07
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated November 16, 2007, dismissing her formal
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. The Commission accepts the appeal in accordance with 29
C.F.R. � 1614.405.
Believing that she was subjected to discriminatory harassment, complainant
contacted the EEO office. Informal efforts to resolve complainant's
concerns were unsuccessful. On October 29, 2007, complainant filed the
instant formal complaint, claiming unlawful employment discrimination
in reprisal for prior protected activity.
In its final decision of November 16, 2007, the agency determined that
complainant's complaint was comprised of the following claim:
On an ongoing basis, including September 17, 2007, complainant is given
different instructions than other carriers.
The agency dismissed the formal complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1). As an initial matter, the agency
noted that complainant also claimed that she was being denied official
EEO time on several occasions in August, September and October 2007.
The agency found that because it was irrelevant whether or not the
alleged denial of official time was motivated by discrimination, the
matter would be "referred to the agency official responsible for the
quality of complaints processing . . . ." Further, the agency noted
that an inquiry would be conducted and a separate document addressing
the official time matter would be issued.
Regarding the claim that she was given different instructions, the agency
found that while complainant "may have felt harassed or singled out by
the actions alleged" the matter was not sufficiently severe or pervasive
to state a claim of hostile work environment. Moreover, the record did
not indicate that complainant was subjected to any adverse action.
On appeal, complainant argues that she has alleged a "continuing pattern
of [a] hostile work environment." While she does not provide specific
examples of the alleged harassment in her appeal statement, complainant
nevertheless asserts that the instant case is directly related to a
prior case (Case No. 4F-926-0185-07). Further, complainant reiterates
her belief that the agency has denied her official time to work on her
complaint.
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 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).
A review of the formal complaint reveals that, in addition to her
claims for official time, complainant believes she was harassed when her
supervisor found her on the dock, checking how much DPS mail she had.
According to complainant, the supervisor told her it was too early to do
that, even though other carriers were allowed to check their DPS in the
morning.1 Although the supervisor stated that she would give complainant
the count on the computer, complainant asserts that the supervisor failed
to do so. Complainant also alleged that a clerk was not provided to
"fix [the] messy DPS mail".
As noted above, the agency dismissed the matter finding that the incident
was insufficient to state a claim of harassment. The Commission,
however, disagrees. In addition to the September 17, 2007 event, the
formal complaint clearly states: "I am being subjected to ongoing and
continuing hostile work environment (See case #4F-926-0185-07) based on
reprisal . . . ." In the prior complaint, complainant alleged that she
was instructed not to talk to carriers on the other side of the unit,
while other employees were permitted to do so; a personal note was removed
from her case and management failed to take action; and she was given a
discussion and told she could not request a temporary change of schedule.
Therefore, we find that the agency erred in isolating the September 17,
2007 event as a single incident of discrimination. Instead, the incident
appears part of a broader claim of ongoing retaliatory harassment.
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.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
The agency improperly viewed complainant's claim individually, rather
than part of an overall claim of harassment. Thus, in order to avoid
the fragmentation of complainant's hostile work environment claim,
we find that the specific incident present in the instant complaint
should be consolidated with the earlier events remanded for processing,
to the extent practicable.
Finally, with respect to complainant's claims for official time, EEOC
Regulation 29 C.F.R. 1614.605(b) provides that if the complainant is an
employee of the agency, he or she shall be given a reasonable amount of
official time, if otherwise on duty, to prepare a complaint and to respond
to agency and EEO requests for information. The Commission has stated
that an allegation pertaining to the denial of official time states a
separately-processable claim alleging a violation of the Commission's
regulations, without requiring a determination of whether the action
was motivated by discrimination. See Edwards v. United States Postal
Service, EEOC Request No. 05960179 (December 23, 1996). Essentially, the
Commission has held that it has the authority to remedy a violation of 29
C.F.R. 1614.605 without a finding of discrimination. Id. The Commission
held that such a claim should not be processed in accordance with 29
C.F.R. 1614.108, since the focus is not on the motivation, but rather
the justification of why the complainant was denied a reasonable amount
of official time. Id.
In the instant matter, there is insufficient information in the record as
to whether complainant was denied official time, and for what reason.
As noted above, in its decision, the agency noted that "an inquiry
will be conducted" and "a separate document" addressing the matter
would be issued. We agree that the dispute is best addressed after
an investigation.
Accordingly, the agency's decision was improper, and is hereby REVERSED.
The complaint is REMANDED to the agency for further processing in
accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following action:
(1) With respect to complainant's hostile work environment
claim:
The agency is Ordered to process the remanded claims in accordance with 29
C.F.R. 1614.108. The agency shall, to the extent practicable, consolidate
the instant formal complaint with complainant's other pending harassment
complaint for continued processing (Agency No. (4F-926-0185-07).
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.
(2) With respect to the alleged denial of official time:
Within ninety (90) calendar days of the date this decision becomes final,
the agency shall investigate the issue of whether complainant was denied
a reasonable amount of official time. The agency shall include in
the record: documentation showing how much time was requested; for what
stated purpose the time was requested; how much time was granted, if any;
and the justification for the denial of any requested time. The agency
shall notify complainant of the opportunity to place into the record any
evidence supporting her claim that she was denied a reasonable amount of
official time. Thereafter, the agency shall issue a final decision as
to whether complainant was denied a reasonable amount of official time
with appeal rights to the Commission.
A copy of the report of investigation and the final decision on official
time shall be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (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 (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
May 9, 2008
__________________
Date
1 The record indicates that carriers checked their DPS in order to assess
the time they would need, to complete a 3996 request.
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2
0120080823
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120080823