01996604_r
08-06-2002
Brenda McIver-Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brenda McIver-Smith v. U.S. Postal Service
01996604
.August 6, 2002
Brenda McIver-Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996604
Agency No. 4-C-442-0063-97
Hearing No. 220-99-5102X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant worked as
a �010" operation supervisor at the agency's Youngstown, Ohio postal
facility. On December 23, 1996, complainant claims that a named manager
(Manager) abruptly and without justification, �pulled� her from this
assignment, and reassigned her to act as a subordinate supervisor in
�automation.� Complainant contends that the Manager intentionally
embarrassed her by reassigning her in this manner, and this incident
is merely one of numerous incidents perpetrated by the Manager for the
purpose of creating a hostile work environment. Complainant claims
discrimination on the bases of race, sex, and in reprisal for prior
protected activity.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on February 12,
1997. At the conclusion of the investigation, complainant was provided
a copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
Considering only the December 23, 1996 reassignment as a single claim
of discrimination, with no reference to complainant's harassment claim,
the AJ issued a summary judgment decision concluding that complainant
failed to establish a prima facie case of discrimination on any of the
bases alleged, finding that complainant failed to demonstrate that she was
�aggrieved� by this action. The AJ additionally found that complainant
failed to provide evidence identifying similarly situated individuals
who were accorded more favorable treatment. The agency's final action
implemented the AJ's decision.
On appeal, complainant argues that both the agency and the AJ misconstrued
her complaint and failed to address it as a claim of harassment.
In her statement, complainant elaborates on the incidents of harassment
reflected in the record, including the December 23, 1996 reassignment,
and contends that the agency failed to review these incidents altogether
in the context of a harassment claim. Complainant requests that the
Commission consolidate all pending complaints, and conduct a hearing on
her harassment claim, taking into consideration evidence of all of the
incidents which she identifies in support of this claim. The agency
submits no response to the appeal.
At the outset, we note that Commission records reflect that complainant
and the agency entered into a settlement agreement on August 29, 1996.
In pertinent part, the agreement obligated the agency to return
complainant to her previous supervisory assignment (010 operations)
as of September 7, 1996. When complainant was reassigned from the 010
operations position on December 23, 1996, she filed a written claim
of breach with the agency that same day. In response to the agency's
requests for additional information in January 1997, complainant
not only addressed the reassignment, but also identified several
of the incidents underlying her harassment claim, including public
reprimand by the Manager; revocation of her supervisory authority to
handle Step One grievances; and revocation of supervisory authority to
discipline subordinates. Complainant then filed the instant complaint
in February 1997.<1> The record further reflects that the agency denied
complainant's breach claim, and that complainant filed an appeal from
this determination.
In McIver-Smith v. U.S. Postal Service, EEOC Appeal No. 01973151 (February
9, 1999), the Commission dismissed complainant's appeal regarding the
agency's decision on her breach claim on the grounds of untimely filing
pursuant to 29 C.F.R. � 1614.402(a). Complainant filed a request for
reconsideration of this decision.
We find that complainant's instant claim regarding her December 23,
1996 reassignment states the same claim that was previously raised by
her as breach claim, and that this matter was decided by the agency
and the subject of a Commission decision. McIver-Smith v. USPS (EEOC
Request No. 05990486 (February 21, 2002). We therefore will not
further address this claim other than to note that the December 23,
1996 reassignment may nonetheless be viewed as evidence supporting
complainant's harassment claim.
Based on a fair reading of the EEO Counselor's report, the formal
complaint, and the affidavit provided by complainant during the
investigation of the complaint, we find that complainant avers that
the Manager engaged in a �hateful agenda� against her, noting in
particular the purported public reprimand and revocation of significant
supervisory duties, all which occurred in close temporal proximity
to the reassignment. Moreover, regarding the reassignment itself,
complainant further claims that the reassignment was implemented by the
Manager in a manner calculated to embarrass her, and that the Manager
deliberately moved her to this location because it was in the middle of
the floor, such that her diminished authority was on public display.
Complainant additionally avers that the supervisor in her reassigned
position documented and reported everything she did, and that these
reports were ultimately referred to the Manger, who took action against
her through instructions to another named manager. Complainant claims
that the �harassment, humiliation, retaliation and intimidation�
were on-going, and resulted in a stress induced medical condition
which required her to remain at home in a non-duty, non-pay status.
After careful consideration, we conclude that these identified incidents,
including the reassignment, are sufficiently severe and pervasive so as
to establish an actionable claim of harassment due to a hostile work
environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993) and Cobb, supra.
Having made this determination, we next find that both the AJ and
the agency incorrectly framed the claim in the instant complaint as
being limited to only the December 23, 1996 reassignment, and then
improperly rendered a decision on the merits of that claim, finding
no discrimination. In doing so, we find that the AJ and the agency
failed to address complainant's harassment claim, such that we deem it
to be dismissed. Furthermore, while complainant provided a comprehensive
statement of her harassment claim in her affidavit, we find that the
agency otherwise failed to adequately investigate this claim.
Accordingly, for these reasons stated herein, we VACATE the agency's
final action, and REMAND the complaint to the agency to undertake a
supplemental investigation regarding complainant's claim of harassment,
and to provide complainant with the opportunity to request a hearing or
agency decision at the conclusion of this investigation, as set forth
in the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1. The agency is ORDERED to conduct a supplemental investigation
addressing the issue of whether complainant was discriminated against
as a result of a comprehensive series of harassing incidents, in the
manner identified in complainant's affidavit that is addressed in
the instant decision.
The supplemental investigation must be completed within forty-five
(45) days of the date that this decision becomes final. Thereafter,
the agency shall provide complainant with a copy of the supplemental
investigative file and shall notify complainant that she may request a
hearing on this matter within thirty (30) calendar days of receipt of the
notice of the right to do so. If complainant does not desire a hearing
on the claim of harassment, or fails to respond to the agency's notice
within the 30-day period, the agency shall issue a final agency decision
in accordance with 29 C.F.R. � 1614.. A copy of the agency's notice
transmitting the supplemental investigative file to complainant and notice
of rights must be submitted 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
August 6, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The record also shows that the agency initially dismissed the instant
complaint on the grounds of untimely EEO Counselor contact pursuant to
29 C.F.R. � 1614.107(a)(2), but that on appeal, the Commission reversed
this determination and remanded the complaint for further processing.
See McIver-Smith v. U.S. Postal Service, EEOC Appeal No. 01974341
(August 11, 1998).