0120141658
09-10-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120141658
Agency No. 4C-170-0001-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 21, 2014, 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 Postal Support Employee (PSE) at the Agency's Revere facility in Revere, Pennsylvania.
On October 3, 2013, Complainant sought EEO counseling on this complaint. On January 5, 2013, Complainant filed this formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), color ("Tattoos"), age (51), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On March 28, 2013, Complainant requested leave to attend a wedding, but the Postmaster forgot about it, even though the request had been approved and noted on a calendar, and the calendar then disappeared;
2. On May 29, 2013, her time was not entered correctly on the payroll records, which caused her two months of pay advances, payroll deductions and corrections;
3. In June of 2013, the Postmaster was inappropriate on several occasions when he talked about his sexual encounters with women and commented to her on the size of Complainant's chest;
4. On unspecified dates during June 2013, Complainant's manager disrespected her and talked about her sexual encounters with men;
5. On September 24, 2013, Complainant was subjected to a financial audit and management informed Complainant that she could not work at the office;
6. On an unspecified date, Complainant was denied unemployment compensation;
7. On February 25, 2014, Complainant was told that she could not work in the Kintnersville Post Office and later learned that she was barred from working at other offices; and
8. On unspecified dates, Complainant received two Letters of Demand claiming that Complainant still owed the Government money pertaining to matters that were closed and settled in Complainant's favor in January of 2014.
On February 18, 2014, the Agency sent Complainant an acknowledgement of its receipt of her formal complaint. The acknowledgement noted that in her informal complaint, Complainant requested "reinstatement to [her] position with back pay and benefits." On February 25, 2014, the Agency sent Complainant a Form 2569-C, Affidavit for Compensatory Damages. The Agency informed Complainant that before her complaint could be processed, it required that Complainant complete the EEO Investigative Affidavit for Compensatory Damages. In April of 2014, the Agency sent Complainant a letter of Demand, claiming that Complainant still owed the Government money.
Complainant named four responsible management officials: the OIG Inspector (male, age unknown), the Postmaster of Upper Black Eddy, (male, age unknown), the Manager- in -Charge (female, age unknown) and the Manager of Post Office Operations (male, age unknown). She had previously notified management that the Postmaster named in this complaint had sexually harassed her. Her complaint identified the alleged period of discrimination as extending from January 2013 to September 2013. She attached a six-page document as her complaint. She reported the incidents to management and was transferred away from the Postmaster, but he still controlled Complainant's time and attendance. Complainant then stopped working in that office.
Claim 1 - Leave Request Forgotten
On March 28, 2013, Complainant notified the Postmaster of her request for leave for a wedding. The request was submitted two months prior to the requested date. The Postmaster told her that there was no problem and that she should write the date on his calendar, behind his desk. Complainant did as asked. On the day of the wedding, Complainant received a phone call from the Officer- in- Charge at Durham facility, telling her that the Postmaster did not open the Springtown Post Office or arrange for it to be opened. When Complainant looked for the calendar, it was gone. After that incident, Complainant claims that the Postmaster tried to get Complainant fired.
Complainant took over the running of the Durham office on April 16, 2013.
Claim 2 - Incorrect Entry of Time
On May 29, 2013, Complainant learned that her time was not entered correctly on the payroll records, which caused her two months of pay advances, payroll deductions and corrections.
Claims 3 and 4 - Inappropriate Comments
Complainant was initially employed at the Springtown Post Office. While at Springtown Post Office, she claimed that the Postmaster talked about all the women with whom he had sex at the Springtown Post Office. The Postmaster also stated to Complainant that "All the guys are going to love you because you have a big chest."
As part of her duties, Complainant also worked three mornings a week at the Riegelsville post office. Complainant became a PSE on June 15, 2013. Complainant alleged that the female manager talked about her sexual encounters with men.
Claim 5 - Subjected to a Financial Audit and OIG Investigation
The Agency subjected Complainant to a financial audit. The Agency conducted a Count and that Complainant and the person for whom she was substituting were investigated. Complainant asserts that she was advised that someone had made a call and accused her or this investigation would never be happening. According to the EEO Dispute Resolution Specialist's Inquiry Report, the Postmaster of Upper Black Eddy informed the Officer-in-Charge (for whom Complainant was supposed to substitute) that Complainant could not work in the Philadelphia district any longer.
On September 24, 2013, Complainant was informed that she could not work in her district (Philadelphia) and told to turn over her keys to the office.
Claim 6 - Denied Unemployment Benefits
The record is unclear as to the date, but Complainant learned that she was denied unemployment compensation by the Department of Labor.
Claim 7 - Displacement
In January of 2014, there was a grievance settlement. The EEO Report noted that "a review of the Grievance Tracking System revealed Counselee's Emergency Placement was rescinded and she was returned to duty on January 10, 2014." On February 25, 2014, Complainant was told that she could not work in the Kintnewville Post Office because she was not a distribution clerk. She was also told that she could no longer work in her home district (Philadelphia). Complainant made EEO contact for the second time, in February of 2014.
Claim 8 - Letters of Demand for Payments
In April of 2014, the Agency issued another Letter of Demand again seeking restitution for claims that Complainant states should have been resolved by the January 2014 settlement. The Agency continued to pursue payments, which Complainant claimed was retaliatory harassment.
The Agency Decision
The Agency issued a final decision dismissing the complaint for untimely EEO contact, for failure to state a claim, and for lodging a collateral attack on the processes of another forum.
The Agency found that Complainant did not make initial EEO contact until October 3, 2013, which was beyond the 45 day timeframe with regard to issues 1, 2, 3 and 4. The Agency found that the EEO poster was appropriately displayed. The Agency stated that during the pre-complaint counseling, Complaint informed the Dispute Resolution Specialist that she provided the information related to the alleged inappropriate conduct of her manager as background information.
The Agency found that Complainant failed to state a claim with regard to issues 5 and 7, because directing employees in the performance of their duties is within the realm of managerial prerogative and authority. The Agency also reasoned that issue 6 failed to state a claim because the Agency reasoned that Complainant was attempting to use the EEO process to collaterally attack actions on another forum's proceedings.
Similarly, the Agency found that the issues pertaining to the financial audit, demand for payments, and being subjected to an agency investigation, did not state a claim because the Agency found that the alleged incidents did not render an individual aggrieved. The Agency noted that the Debt Collection Act mandates that monetary disputes involving an agency and any claimed debt must be resolved through the provisions of the Debt Collection Act. The Agency then found that "there is no evidence in the record to show that the Appellant was subjected to any adverse action or that she was denied any entitlement in relation to a term, condition or privilege of employment as a result of her allegation." The Agency also found that Complainant had not demonstrated that she was an aggrieved employee or stated a claim because she had not provided "objective documentation regarding any alleged damages via PS Form 2569-C, EEO Investigative Affidavit for Compensatory Damages." With regard to the retaliation claim, the Agency found that Complainant had not shown any adverse treatment that was reasonably likely to deter the charging party or others from engaging in protected activity. The Agency stated that the Agency did not believe that the incidents alleged were likely to deter Complainant or others from engaging in protected activity. The Agency dismissed the entire complaint.
This appeal followed.
ANALYSIS AND FINDINGS
Timeliness of Claims
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
In allegation 1, Complainant alleges that after she requested leave, but the Postmaster failed to approve the leave in the manner required for the granting of the leave. This occurred in March of 2013. Complainant learned of the problem in connection with this request two months later, when on May 29, 2013, she became aware that her time was not entered correctly on the payroll records, which caused her two months of pay advances, payroll deductions and corrections. The record shows that despite a January 2014 settlement of this issue, the Agency continued to claim that Complainant owed restitution to the Agency.
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992)). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Dep't of Def., EEOC Request No. 05910837 (Jan. 31, 1992). The Agency has failed to meet its burden of providing evidence of the posting of the notice because the evidence that the poster was in place was provided by a Postmaster who did not begin employment at that facility until December of 2013. The alleged events occurred over a period of January 2013 to September of 2013.
Complainant alleged that she was subjected to unwarranted scrutiny, displaced from her employment opportunities, subjected to ongoing demands for payment as part of a claim of ongoing retaliatory harassment. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (June 10, 2002).
We conclude that Complainant's initial EEO counselor contact in October of 2013 will be deemed timely with regard to the decision to displace Complainant from working in the Kintnewsville Post Office and other locations and to subject her to ongoing demands for payments. Given that Complainant raised these claims individually and as a part of harassment allegation, these acts will render Complainant's related harassment claims also timely raised.
Failure to State a Claim
An agency shall accept a complaint from any 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, 1614.106(a). The Commission's federal sector case precedent has long defined and "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).
As an initial matter, being barred from working in certain places states a claim. Thus, claim 7, with respect to being told she could not work in her district or the Kintnewville Post Office states a claim.
With respect to claims 1-4, 7, and 8 instead of treating these events as incidents of the claim of harassment, however, the Agency looked at them individually. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of).
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). We find that Complainant's allegations are sufficient to state a claim of a hostile work environment. Complainant alleged that she suffered a loss of pay, displacement, unwarranted claims of indebtedness1 and harassment after she challenged the inappropriate harassment by two named management officials.
We note that the Agency stated that "evidence provided indicates [Complainant was] 'made whole' through the grievance procedure with a settlement dated January 9, 2014." However, Complainant stated, at page six of her complaint that she had not been paid for five weeks. Thus, we are not convinced that the grievance settlement settled all matters.
Taken as a whole, we find that Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. We find that Complainant also stated a claim of harassment with regard to claims 1, 2, 3, 4, 7, and 8.
Collateral Attack
The Agency found that the proper forum for Complainant to challenge the appropriateness of the collection process and validity of the debt at issue was through the administrative process of the Debt Collection Act. The Agency found that the allegations fail to state a claim because the claims were not within the scope of the Commission's jurisdiction. Claims concerning the financial audit and the OIG investigation should be addressed within the OIG process, not with the Commission. Likewise the Commission's regulations do not convey it with any authority over unemployment compensation matters. Thus, we do not find that Complainant stated a claim with regard to issues 5 and 6. As to claim 8, since the Agency references a grievance settlement on the matter, we are not convinced that the matter is entirely covered by the Debt Collection Act.
CONCLUSION
Accordingly, we AFFIRM in part and REVERSE in part the Agency's final decision dismissing Complainant's complaint. We REVERSE with regard to her claims of displacement and ongoing harassment / hostile environment as stated in claims 1, 2, 3, 4, 7 and 8. We AFFIRM the Agency's dismissal with regard to claims 5 and 6. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claims (displacement and retaliatory harassment / hostile work environment) 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 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 (M0610)
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 tends 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 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 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 10, 2014
__________________
Date
1 Complainant stated that the issues for which the Agency claims indebtedness were settled. Although the FAD mentions a January 2014 settlement, it is not clear from the record whether Complainant actually received full relief. Even if there was a grievance settlement, she may not have received all of the relief which may have been available to her via the EEO process.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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