Annie F,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity CommissionJul 12, 2016
0120161201 (E.E.O.C. Jul. 12, 2016)

0120161201

07-12-2016

Annie F,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Annie F,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Western Area),

Agency.

Appeal No. 0120161201

Agency No. 1E853000316

DECISION

Complainant timely appealed to this Commission from the Agency's January 29, 2016, dismissal of 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Custodian Group Leader (P-04) at the Agency's Processing and Distribution Center in Phoenix, Arizona.

On January 22, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age (59) when:

1. On September 24, 2015, January 3, 2016, and other unspecified dates her co-worker, ("C1," male), deliberately hid the tow vehicle from her; and

2. On or around December 17, 2015, C1 and another co-worker ("C2," male) used vulgar language about her in front of other employees.

As background information, Complainant, who now works on Team 3 ("T-3") used to work on Team 2 ("T-2") with C1 and C2. She alleges that over the years, C1 regularly harassed her and the other female custodians. In December 2014, she alleges C1 stood over her in a threatening manner and verbally assaulted her in front of the Maintenance Manager ("M1," male) who did nothing to stop him. Complainant informed a manager, who spoke with the T-2 Manager ("M2," male) on her behalf. Afterward, she was approached by the T-2 Supervisor, who she alleges "instructed her not to engage with C1, to stay away from him and leave him alone." Complainant was told that C1 received a similar instruction, but felt so uncomfortable that she transferred to T-3, which meant relinquishing her schedule with Saturday and Sunday off. Complainant alleges that since the December 2014 incident, C1 has been told at least twice to leave her alone, but the harassment continues.

Regarding Claim 1, Complainant, as a Custodial Group Leader and the only licensed driver on T-3, drove the tow vehicle every day. At the end of each shift, the tow vehicle was to be left in or outside the blue room (the custodial room). C1 and C2, who drove the tow vehicle for T-2, the shift immediately prior to T-3, were aware that Complainant would be the next person to use it after their shift. As background, Complainant explained that she often had to search for the tow vehicle, which was left "all over the building." Thus, Management, including M2 and Complainant's manager ("M3," male), were allegedly aware of this ongoing issue.

On September 24, 2015, another custodian caught C1 arranging cages around the tow vehicle on the north side of the building, hiding it from view. Afterward, M2 ordered (again) the tow vehicle to be parked outside the blue room after each shift. Complainant alleges (also as background information) that after that, the tow vehicle was often anonymously, but she believes deliberately unplugged so that the battery was dead when it was her turn to use it, and she came to work to find it hidden on multiple occasions. On January 3, 2016, Complainant found the tow vehicle parked outside the men's locker room, and alleges that identification on the tow vehicle indicated C1 was the last to drive it.

Complainant clarified Claim 2 on appeal by providing the identities of the coworker witnesses and the exact "vulgar" language C1 and C2 allegedly directed at her. When Complainant entered the blue room before her shift, C1 and C2 were sitting at a table by her locker, her manager ("M3") was present, the Custodial Group Leader for T-2 (female) and three female custodians were seated at another table. Complainant knew C1 and C2 were commenting, but, due to a hearing impairment, could not make out their words until she was at her locker behind them. C1 stated loudly, "if T-3 would just mind their own fucking business" and C1 or C2 called the cookies she baked "bird shit." C1 mocked her when she said to her female coworkers that she would write C1 and C2's comments down.

Complainant also obtained the witness statements from two of the female custodians she sat with that day, which had been requested by the HR manager for an Initial Management Inquiry Process ("IMIP"). Per Agency policy, an IMIP was initiated after Complainant reported the allegations in Claim 2 to Human Resources. In relevant part, the statements provided:

Witness 1

We were able to hear C1 and C2's conversation at the table on the other side of the supply cage. I heard the words 'cunt rags'... and 'fucking bitches.' Then the conversation turned to Complainant. They were saying [to Complainant's manager, M3] 'who dressed your group leader' saying that she and others (because the words were in the plural) are 'fucking bitches' and 'homely looking.' [T-2 Group Leader] walked to their table and attempted to shush them but they continued making the comments.

Witness 2

When Complainant walked into the blue room, C2 called her a 'fucking bitch' ... C1 said 'fucking losers', then 'what is she wearing, the homely looking thing,' C2 said 'fucking cunt rags' [T-2 Group Leader] mouthed to them be quite and to stop but they kept going. Complainant made and passed out cookies to everyone. [M3 took a cookie] and C1 and C2 said 'hey man what the hell are you eating' and at this time Complainant was at her locker right behind C1 and C2." M3 said 'hey don't talk about this I'm eating a cookie and Complainant made them and she's standing right there.' [Complainant sat at the table with the other female custodians] Complainant never seemed to hear any of the nasty comments beforehand, she never said anything until now, and she made the comment, 'I'll just write it down.' Then C2 yells 'go ahead, yep write it down - you write everything down She bitches about everything.' Complainant never said a word to them or even looked at them.

The IMIP sums up the incident as: "a couple of witnesses state that on one occasion in mid-December C1 and C2 made a derogatory comment that contained language some would find offensive about cookies brought to work by Complainant." Relevant to both Claims 1 and 2, the IMIP noted "friction" between T-2 and T-3 at tour turnover and recommended a manager or supervisor's presence at the end of the shifts. We note that M3 was present during the alleged discriminatory act in Claim 2, which occurred shortly before tour turnover.

The Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.

ANALYSIS AND FINDINGS

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).

The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). A complaint should not be dismissed for failure to slate a claim unless it appears beyond doubt that the complainant cannot pose 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. Burgos v. GSA, EEOC Appeal No. 0120140107 (Feb. 11, 2014) (citing Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (March 13, 1997)).

The Agency erred in its conclusion that Complainant's claims constituted "isolated incidents" that were not sufficiently severe to state a claim of harassment. Specifically, the Agency improperly disregarded information that Complainant, based on the record, intended as background to be considered with her claims. In both her pre-complaint inquiry and her formal complaint (as well as on appeal), Complainant repeatedly alleges a history of ineffective or nonexistent responses by management to reports of harassment, which she alleges contributed to the claims at issue. We have previously found that a supervisor's lack of response in instances of alleged harassment, particularly in allegations where the harassment is repeated, heightens the severity of the alleged act. See, e.g. Complainant v. United States Postal Serv., EEOC Appeal No. 0120121385 (Nov. 16, 2012) (Complainant's allegation that an Acting Manager verbally assaulted her on one occasion using racial slurs and profanity, when considered with her statement that prior incidents of alleged racial slurs and profanity were not addressed by management, stated a viable claim of discriminatory harassment). Complainant has demonstrated that the actions alleged in Claim 1 interfere with her ability to do her work, and when considered with the background information provided, we find them sufficiently severe and pervasive to state a claim of harassment. Likewise, Complainant's clarifications of Claim 2 on appeal, particularly the lack of action taken by M3 and severity of C1 and C2's language, demonstrate a level of severity sufficient to state a claim.

Also on appeal, Complainant alleges the IMIP was improperly handled; alleges multiple instances where C1 approached her while she was conversing with another coworker, interrupted her, and then spoke with her coworker as though Complainant were invisible; walked so close to Complainant as to intimidate her so that she would have to get out of the way, alleges multiple instances where C1 and C2 made additional work for Complainant; and alleges that C1 tossed trash in front of her as she was walking. We find these allegations are an attempt to raise a new claim of harassment. Our review is limited to the two claims listed in Complainant's formal complaint. These new allegations are not at issue in the instant complaint so we will not adjudicate them in this decision. If complainant wishes to pursue these allegations, she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.

The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.

ORDER (E0610)

The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. 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 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 (M0416)

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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M signature

Carlton M. Hadden, Director

Office of Federal Operations

July 12, 2016

__________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

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