01a43075
11-02-2005
Brenda J. Shumway, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brenda J. Shumway v. United States Postal Service
01A43075
November 2, 2005
.
Brenda J. Shumway,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43075
Agency No. 4K-230-0134-02
Hearing No. 120-A4-0005X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant was employed as a Rural Carrier at a Charlottesville,
Virginia facility of the agency.<1> Complainant initiated counseling
with an EEO Representative on April 1, 2002, and, subsequently, filed
a formal complaint alleging that the agency discriminated against and
harassed her on the bases of sex (female) and disability (chronic asthma)
when her supervisor (S1) (1) repeatedly stated �you don't need that,
get to the street� when he observed complainant using a nebulizer<2>
in the break room prior to delivering mail for her route, (2) informed
complainant's coworkers that he would fire complainant at some point
in time, (3) in October 2001, denied complainant's request for leave to
visit her terminally-ill relative, (4) in March 2002, approached an agency
customer to solicit mis-delivered mail complaints against complainant,
(5) in April 2002, denied complainant's requests for leave, and (6)
complained about the state of the privately-owned vehicle complainant
used to deliver mail. Complainant stated that her claim displays a
pattern of discrimination.
The agency dismissed the incidents alleged in (1), (2) and (6) for
failure to state a claim and the action alleged in (3) for failure to
initiate contact with an EEO Counselor in a timely manner.<3> The agency
conducted an investigation of the remaining matters and, upon completion,
informed complainant of her right to elect a hearing before an EEOC
Administrative Judge (AJ) or an immediate final decision by the agency.
Complainant elected the former. The assigned AJ issued a summary judgment
decision finding no discrimination as to (4) and (5). Specifically,
the AJ found that complainant failed to show that she was an individual
with a disability or that similarly situated individuals outside of her
protected classes were treated more favorably. Subsequently, the agency
issued a final action implementing the AJ's finding of no discrimination.
Complainant filed the instant appeal. On appeal, complainant stated
that the AJ failed to address all of the incidents that comprise her
claim of harassment and that she did establish disparate treatment.
First, we agree with the agency's finding of untimeliness regarding the
action alleged in (3), but disagree with its treatment of the matter.
Further, we do not agree with the agency regarding the actions alleged in
(1), (2) and (6). We find that (1) through (6) state a claim of hostile
work environment harassment.
Specifically, regarding the action alleged in (3), �an agency must
consider, at least as background, all relevant evidence offered in
support of a timely raised legal claim, even if the evidence involved
incidents that occurred outside the 45-day time limit . . . [d]uring the
investigation, the degree to which a certain piece of proffered evidence
is relevant to the legal claim will determine what sort of investigation
is necessary of that particular piece of evidence.� EEO Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-8 (November 9, 1999).
Here, complainant's claim of hostile work environment alleges a pattern
of discrimination and a series of acts by the same manager, one or
more of which was raised within the 45-day time frame for initiating
contact with an EEO Counselor. We find that the action alleged in (3)
is evidence in support of complainant's hostile work environment claim
and is sufficiently relevant to the remaining incidents to render it
appropriate for investigation.
Further, where, as here, 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. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077
(March 13, 1997). We find that the incidents raised in (1) through (6),
when viewed together, are sufficiently severe or pervasive to constitute
an actionable claim of harassment under the above cited legal standard.
We note that the agency did not accept the incidents alleged in (1),
(2) and (6) for investigation and dismissed the matters. Further,
the AJ did not reinstate (1), (2) and (6) at the hearing stage. Thus,
after a careful review of the record in its entirety, we find that the
agency and the AJ erred in viewing the incidents alleged in (1) through
(6) as separate claims rather than evidence supporting complainant's
claim of a hostile work environment. It is the decision of the Equal
Employment Opportunity Commission to vacate the agency's final order
and direct the agency to investigate the incidents alleged in (1), (2),
(3) and (6) as part of complainant's hostile work environment claim,
in accordance with this decision and the Order below.
ORDER
The agency is ordered to process the remanded claim of �hostile work
environment harassment,� which includes the incidents alleged in (1), (2),
(3) and (6), 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
within sixty (60) calendar days of the date this decision becomes final,
unless the matter is otherwise resolved prior to that time, and forward
the matter to the appropriate Hearings Unit for processing under 29
C.F.R. � 1614.109.
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 (K0501)
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 (R0900)
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
November 2, 2005
__________________
Date
1Complainant retired effective December 31, 2002.
2We note that, based on the record, a �nebulizer� is a machine that
delivers medication for respiratory conditions, such as asthma, in a
mist form. Initially, complainant utilized an electric nebulizer.
3We note that the agency indicated that complainant failed to oppose
the partial dismissal prior to its investigation. However, complainant
stated that she opposed the partial dismissal in a letter dated August 26,
2002 and that she alleges a hostile work environment that would encompass
all of the aforementioned incidents. There is evidence of record that
complainant, at a minimum, opposed the dismissals at the hearing stage.
The AJ did not reinstate the dismissed incidents.