0120161634
08-09-2016
Cherilyn C,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cherilyn C,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120161634
Agency No. 4J-604-0023-16
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 9, 2016, dismissing 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 PSE - Clerk at the Agency's South Suburban P&DC facility in Bedford Park, Illinois.
On February 29, 2016, Complainant filed a formal complaint alleging that the Agency harassed/discriminated against her based on her race (African-American), sex (female), age (22)2 and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII when:
1. On October 23, 2015, Co-worker 1 deliberately ran a cart over her foot injuring her, and management did not take appropriate action;
2. On October 30, 2015, Supervisor 2 told Complainant that she could have fired her for not wearing proper shoes (apparently in connection with the above incident);
3. On November 6, 2015, she was given a pre-disciplinary interview (PDI) for not wearing proper shoes; and
4. On November 10, 2015, she was moved from Tour 2 to Tour 3 effective November 14, 2015, because she complained that she was in a hostile work environment.3
Complainant contended that on October 12, 2015, she heard Co-worker 1 call Co-worker 2 a dike in an argument in front of Acting Supervisor 1. Complainant contended that on October 13, 2015, she wrote a statement in support of Co-worker 2. She believes that Co-worker 1 deliberately ran a cart over her foot in retaliation for her statement. Thereafter, on November 6, 2015, Complainant received a PDI for improper foot wear. On November 10, 2015, Acting Supervisor 1 and Supervisor 2 initiated a meeting with Complainant about her feelings of being in a hostile work environment. Complainant wrote that they notified her that because they did not want her to feel like she was in a hostile environment, management was moving her from Tour 2 to Tour 3.
The Agency dismissed the complaint, as incorrectly characterized in footnote 3, for failure to state a claim.
On appeal, Complainant argues that the Agency incorrectly defined her complaint, and that she was subjected to a hostile work environment.
ANALYSIS AND FINDINGS
As an initial matter, we acknowledge that Complainant did not check off a box in her complaint alleging discrimination based on reprisal. However, in the narrative portion of her pre-complaint, she alleges that Co-worker 1 deliberately ran over her foot with a cart in retaliation for Complainant giving a statement supporting Co-worker 2 regarding Co-worker 1 angrily calling Co-worker 2 a dike. For purposes of failure to state a claim, this can fairly be read as Complainant alleging discrimination based on opposing discrimination in violation of Title VII, or participating in an inquiry with Title VII implications.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22.
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. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Applying the above, we find that issues 1 through 4, taken together, rise to the level of alleged actionable harassment. Also, they would reasonably likely deter EEO activity. Further, issue 4 independently states a claim of harm.4
The FAD is REVERSED.
ORDER
The Agency is ordered to process the remanded claims, as redefined herein, in accordance with 29 C.F.R. � 1614.108. 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.
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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 9, 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.
2 The Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. covers those aged 40 and above.
3 The Agency defined Complainant's complaint as alleging discrimination based on race and sex when (a) on October 23, 2015, she was injured and management did not submit her injury report to the Office of Workers' Compensation (OWCP) until December 11, 2015, (b) on [November 6, 2015] she was given a PDI, and (c) on dates not specified, she was harassed by her supervisor constantly calling out her name. On appeal, Complainant indicates that she did not allege issue (a), and that issue (c) was mischaracterized. After reviewing Complainant's informal complaint, counselor's report, and formal complaint, we have redefined the complaint, as recounted in the body of this decision.
4 In her report, the EEO Counselor wrote that during EEO counseling Complainant was offered a return to Tour 2, but declined. On appeal, Complainant writes that being moved to Tour 3 was part of the hostile work environment. Given Complainant's allegation, issue 4 states a claim.
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