01200822922293232123232324
09-18-2008
Anna M. Sturgeon, Jeanette S. French, Michelle D. Laign-Robbins, Gail F. Brunjes & Susan S. Whitfield, Complainants, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anna M. Sturgeon, Jeanette S. French, Michelle D. Laign-Robbins,
Gail F. Brunjes & Susan S. Whitfield,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 0120082292, 0120082293, 0120082321,
0120082323 & 0120082324
Agency Nos. 4K-230-0031-08, 4K-230-0038-08, 4K-230-0030-08,
4K-230-0035-08 & 4K-230-0037-08
DECISION
Complainants filed timely appeals with this Commission from final
agency decisions dated March 20, 2008, dismissing their complaints 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 their complaints were improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim.
During the relevant period, complainants were employed as Rural Carriers
at a Hayes, Virginia facility of the agency. In November 2007, the
complainants initiated EEO contact alleging that the agency subjected
them to hostile work environment harassment when it failed to address
the abusive behavior of a male clerk coworker (C1).
To support their individual claims of harassment, the complainants
alleged: to delay mail delivery, C1 played pranks on them using their
personal belongings (e.g. hid vehicle keys or locked carriers out of
vehicles), hid mail until the last minute, and reorganized mail tubs
so that the carriers would not know the status of each piece of mail;
C1 placed fragile items on tub bottoms under heavier parcels so that
the delicate items would get broken; C1 made insensitive comments to
and/or about carriers and customers; C1 accepted money from carriers for
money orders then indicated the money was missing and blamed a female; C1
overloaded mail bags so that carriers would have to bend unnecessarily; C1
did not relay business or urgent personal messages to carriers; C1 blamed
all mishaps on carriers to customers; C1 caused non-payment or incorrect
payments for the carriers' paychecks; C1 blocked carrier cases with heavy
equipment; and C1 stated that he keeps the work area cold so that he can
watch female nipples or "headlights" and that a female carrier looked
"bend you over the chair good." Further, the complainants stated that,
on October 1, 2007, C1 threw mail tubs across the work room.
In February 2008, the complainants filed individual EEO complaints
alleging that they were subjected to harassment on the basis of sex
(female) based on the October 1 incident. The complainants stated
that the October 1 incident is just one example of C1's consistently
violent behavior.1 Subsequently, the complainants alleged that the agency
retaliated against them, for complaining about C1, when a new Officer-in
Charge (S1) spoke to and treated them in a demeaning manner, threatened
to take their work equipment and to issue unfounded disciplinary actions,
and invited postmasters to stand over the carriers and watch them work
in an intimidating manner. Further, the complainants stated that S1
and the facility Postmaster were well aware of C1's harassing behavior
of the carriers (all of whom are female), but failed to address it.
EEOC regulations require the dismissal of complaints that fail to state a
claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, a complainant
must allege harm 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). Or, hostile work environment
harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of complainant's employment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).
After careful review of the record, the Commission determines that taking
all of the complainants' allegations together, and assuming them to
be true, they have alleged a viable claim of hostile work environment
harassment. Moreover, we find that the complainants also assert the
basis of reprisal and that the agency actions alleged were of a type
reasonably likely to deter complainants or others from engaging in
protected activity. As such, we find that the complainants have stated
a claim of harassment based on reprisal. Accordingly, we REVERSE the
final agency decision dismissing complainants' complaints and REMAND
their individual claims of harassment to the agency consistent with this
decision and the Order below.
ORDER
The agency is ordered to process the remanded claim of hostile work
environment harassment for each complainant in accordance with 29
C.F.R. � 1614.108. The agency shall acknowledge to the complainants
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainants a copy of the investigative file and also shall notify
complainants 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 complainants request 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 the complainants 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 (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 (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 (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 (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
September 18, 2008
__________________
Date
1 Several complainants noted that, in March 2008, the agency issued
Notice of Removal letters to five of the six initial female carriers who
complained of C1's behavior. The complainants indicated that they filed
separate complaints on that matter. The record suggests that the Notices
followed a "walk out" in response to the complained of harassment.
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2
0120082321
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082292, -2293, -2321, -2323 & -2324