0120112313
02-22-2012
Cynthia D. Jones, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Cynthia D. Jones,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120112313
Agency No. 1C-146-0002-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 24, 2011, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed for failure to state a claim. For the following
reasons, the Commission REVERSES the Agency’s final decision and
REMANDS this matter to the Agency for further processing.
BACKGROUND
During the relevant period, Complainant worked as a Part-Time
Flexible Mail Handler at the Agency’s Logistics and Distribution
Center in Rochester, New York. The Supervisor of Distribution
(S1) was Complainant’s immediate supervisor. On February 4, 2011,
Complainant filed a formal complaint alleging that since 2007, she has
been subjected to both harassment and disparate treatment because of
her race (African-American).
Complainant claims that S1 “treated white employees more favorably”
and allowed “whites [to] take extended breaks, but Complainant’s
breaks are monitored.” Record on Appeal (ROA) at page 16, EEO Dispute
Resolution Specialist’s Inquiry Report. Complainant claims that S1 takes
her off the power equipment assignments and “forced her to sweep the
machines for consecutive days” even though Mail Handlers are supposed
to rotate this responsibility. Recently and specifically on November
12, 2010, Complainant claims that S1 yelled at her, waved her fingers
in her face and interrupted her break time. Complainant asked S1 “why
does she only monitor certain people’s breaks?” ROA, Pre-Complaint
Counseling Report, dated November 13, 2010. Complainant maintains that
S1’s actions “made my work environment very uncomfortable and
hostile and unhealthy.”
In its final decision, the Agency dismissed the complaint for failure
to state a claim. The Agency reasoned that there was no evidence that
Complainant was subjected to any adverse action or denied any entitlement
to a term, condition, or privilege of employment.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails 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).
In dismissing the complaint, the Agency reasoned that Complainant did not
suffer any tangible loss. The record indicates, however, that S1 changed
Complainant’s assignments and scrutinized her breaks and did not do
the same to the White employees. She also claims that management’s
actions created an abusive work environment.
Upon review of the complaint and supporting documentation, we find
that Complainant has shown an injury or harm to a term, condition, or
privilege of employment for which there is a remedy. See Diaz v. Dep’t
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If this
claim is proven to be true, Complainant would be entitled to a remedy.
Accordingly, the Agency’s dismissal was in error.
CONCLUSION
Accordingly, the Commission REVERSES the Agency’s decision and REMANDS
the complaint to the Agency for further processing in accordance with
this decision and the Order below.
ORDER (E0610)
In accordance with 29 C.F.R. § 1614.108, the Agency is ordered to process
the remanded claim. The Agency shall acknowledge to the Complainant that
it has received the remanded claim within thirty (30) calendar days of
the date of the final decision. 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 (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 (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
February 22, 2012
__________________
Date
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0120112313
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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