0120064477
03-12-2008
Debbie L. Thompson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Debbie L. Thompson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120064477
Agency No. 4J630007706
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 27, 2006, 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 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In her complaint, complainant alleged that she was
subjected to discrimination on the bases of sex (female), age (45 years),
and in reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when:
1. on April 5 and 10, 2006, a coworker (CW1) verbally harassed
complainant; and
2. on April 26, 2006, a supervisor (S1) denied complainant's application
for time off to attend her daughter's graduation ceremony in retaliation
for complainant's having reported CW1's harassing behavior.
BACKGROUND
Complainant's allegations of hostile work environment harassment stem
from the conduct of CW1, including the following: on April 5, 2006,
CW1 stopped complainant at the office door and said to her, "Don't get
molested out there;" on April 10, 2006, he threw equipment and yelled
at complainant about the organization and cleanliness of the office; on
prior occasions, complainant overheard CW1 talking to two other female
employees about having gone to jail for molesting his granddaughter; and
CW1 had previously touched one female employee's chest inappropriately.
Complainant alleges the following facts relevant to her reprisal claim:
on April 4, 2006, complainant turned in an application for time off on
May 5 and 6, 2006, to attend her daughter's graduation ceremony, and S1
responded verbally that her leave would be approved; on April 10, 2006,
after reporting CW1's behavior to S1 on several prior occasions to no
avail, complainant reported the behavior directly to CW1's supervisors;
on April 11, 2006, S1 verbally reprimanded complainant for having "gone
over his head" by complaining to CW1's supervisors about his behavior;
on April 26, 2006, S1 denied complainant's application for time off
because of "needs of service," even though he had already given his
verbal approval a few weeks prior.1
ANALYSIS
The Commission finds that the facts alleged, if proven, state a claim of
harassment and a claim of reprisal for prior protected activity, i.e.,
complaining about harassment.
Harassment
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
Even if harassing conduct produces no tangible effects, such as
psychological injury, a complainant may assert a Title VII cause of
action if the discriminatory conduct was so severe or pervasive that it
created a work environment abusive to employees because of their race,
gender, religion, or national origin. Rideout v. Department of the Army,
EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied
EEOC Request No. 05970995 (May 20, 1999).
The Commission finds that complainant has alleged actions that, if proven,
are severe or pervasive enough to rise to the level of a hostile work
environment. Whether an environment is hostile or abusive can only be
determined by looking at all the circumstances. Harris, 510 U.S. at 23.
We therefore consider all of the allegations together and find that
complainant has alleged more than a few isolated incidents of harassment:
She alleged two incidents in which CW1 harassed her personally - when he
told her, "Don't get molested out there" and when he threw equipment and
yelled at her about the office's disorganization - and she also alleged
multiple incidents of harassment directed at others.
Because incidents of sexual harassment directed at other employees in
addition to the charging party are relevant to a showing of hostile work
environment, complainant's allegations that CW1 talked repeatedly about
his granddaughter's molestation to others and groped another employee are
germane to her hostile environment claim. See, e.g. EEOC Policy Guidance
on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19,
1990); Hall v. Gus Construction Co., 842 F.2d 1010, 1015 (8th Cir. 1988);
Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987).
These allegations involving other employees are relevant regardless
of whether complainant actually overheard CW1's comments or witnessed
the groping. See, e.g. Johnson v. Navy, EEOC Appeal No. 0120073487
(November 14, 2007) (fact that complainant learns second-hand of racially
derogatory comment by co-worker can still be used to establish racially
hostile work environment because it can impact the work environment);
Schwapp v. Town of Avon, 118 F. 3d 106, 111 (2nd Cir. 1997) (evidence
of harassment heard second-hand relevant to hostile work environment).
Furthermore, the groping allegation, if proven true, strongly supports
a violation of Title VII because the Commission generally presumes that
a single, unusually severe incident of harassment, especially something
physical such as the intentional touching of another's intimate body
area, is sufficiently offensive to alter the condition of the working
environment. See EEOC Policy Guidance on Current Issues of Sexual
Harassment, N-915-050, No. 137 (March 19, 1990).
Considering the totality of the circumstances, we find that complainant's
allegations of CW1's behavior, if proven, are sufficiently severe and
pervasive to state a claim of harassment. We therefore find that the
agency inappropriately dismissed this claim for failure to state a claim.
Reprisal
The anti-retaliation provision of Title VII of the Civil Rights Act of
1964 forbids discrimination against an employee or job applicant who,
inter alia, has opposed an unlawful employment practice or has made a
charge, testified, assisted, or participated in a Title VII proceeding
or investigation. See 42 U.S.C. � 2000e-3(a). Under Commission policy,
claimed retaliatory actions which can be challenged are not restricted
to those which affect the terms and conditions of employment. EEOC
Compliance Manual � 8, No. 915.003 (May 20, 1998); Burlington Northern
& Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2412-13
(2006). Rather, a complainant is protected from any discrimination that
is reasonably likely to deter protected activity. Burlington at 2415.
However, the anti-retaliation provision protects a complainant from
retaliation that produces an injury or harm, not from all retaliatory
acts. Id. at 2414. A person is protected against retaliation for
opposing perceived discrimination if he had a reasonable and good faith
belief that the opposed practices were unlawful; thus, it is well settled
that a violation of the retaliation provision can be found whether
or not the challenged practice ultimately is found to be unlawful.
EEOC Compliance Manual � 8, No. 915.003 (May 20, 1998).
In the instant case, the Commission finds that complainant has
demonstrated she had a reasonable and good faith belief that the alleged
harassment practices were unlawful and, consequently, that she engaged
in protected activity when she reported the alleged harassment to
CW1's supervisors. We also find that the adverse employment decision -
the agency's decision to deny her leave request - occurred within such
a short period of time from the protected activity that a retaliatory
inference arises. See EEOC Compliance Manual � 8, No. 915.003 (May 20,
1998). Furthermore, this retaliatory action produced a harm or injury,
as it prevented complainant from taking leave to attend her daughter's
graduation. See, e.g. Arii v. Runyon, EEOC Appeal No. 01931078 (March
22, 1993) (employee is aggrieved where his leave request was denied
for discriminatory reasons). Such retaliatory action is reasonably
likely to deter complainant or other agency employees from engaging in
protected activity. Therefore, we conclude that the agency's alleged
actions, if proven, do support a claim of reprisal.
CONCLUSION
Complainant has shown an injury or harm to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the
agency's final decision dismissing complainant's complaint is reversed.
The complaint is hereby remanded to the agency for further processing
in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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 (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
March 12, 2008
__________________
Date
1 Complainant has not alleged any facts relevant to her claim of age
discrimination.
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0120064477
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064477