0120110048
01-25-2011
Elizabeth G. Groff, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Elizabeth G. Groff,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120110048
Agency No. 4E-640-0070-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 16, 2010, dismissing a formal 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.
BACKGROUND
On April 16, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On July 26, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to a hostile work environment on the basis of sex (female) when:
1. On April 12, 2010, Agency management assigned a male co-worker (CW1) to work with Complainant, knowing he had verbally assaulted her in October 2009;
2. On March 30, 2010, Complainant became aware that she were not selected for the position of Laborer Custodian at the Brookridge Post Office;
3. On March 12, 2010, the Agency gave Complainant an unsatisfactory rating on the Housekeeping Inspection Report;
4. On October 22, 2009, the Agency required Complainant to submit a request for a detail assignment to the Blue Valley Post Office, after being verbally attacked by CW1 on October 21, 2009;
5. In March 2009, the Agency denied Complainant higher level pay for mowing;
6. In the summer of 2008, the Agency denied Complainant a detail to the Bulk Mail Center;
7. From 2004 to the present, the Agency did not allow Complainant to provide coverage to the Maintenance Support Clerk;
8. Since 2007, the Agency has denied Complainant's request to transfer to the clerk craft has been denied since 2007; and
9. Between 2006 and approximately November 1, 2009, the Agency has assigned Complainant outside and dock route year around with no help with mowing and snow removal.
In an attachment to her formal complaint, Complainant states that she has been subjected to a "Continuing Violation based on Harassment/Hostile Work Environment."
On August 16, 2010, the Agency issued a final decision. Therein, the Agency dismissed Complainant's formal complaint in its entirety. The Agency dismissed Claims (1) - (3) - (5), (7), and (9) for failure to state a claim. Moreover, the Agency determined that Claim (2) constituted a collateral attack on the negotiated grievance process. The Agency also dismissed Claims (4) - (6), (8), and (9) on the grounds of untimely EEO Counselor contact. moreover, the Agency dismissed Claim (7) for failure to state a claim, specifically finding that the matter identified therein was vague.
CONTENTIONS ON APPEAL
Complainant, through her counsel, argues that the Agency improperly decided Claims (1) and (4) on the merits. Additionally, Complainant denies that she previously adjudicated Claim (2) in another forum. Complainant further argues she provided enough information to sufficiently state a claim regarding Claim (7). Moreover, Complainant argues the Agency improperly analyzed her claims piecemeal and failed to consider her allegations as part of a hostile work environment claim. Complainant also requests that the Commission sanction the Agency for failing to submit the complaint file in this case to the Commission within 30 days, as required by 29 C.F.R. � 1614.403(e).
The Agency urges us to affirm its final decision.
ANALYSIS AND FINDINGS
With regard to the agency's arguments concerning Claims (1)-(3), we find that the agency has articulated reasons that go to the merits of Complainant's claims, and are irrelevant to the procedural issue of whether she has stated justiciable claims. See Ferrazzoli v. USPS, EEOC Request No. 05910642 (August 15, 1991). In its final decision, the Agency cited management's response to Complainant's allegations. As to Claim (2), the Agency claims Complainant did not get the job because of a negotiated grievance settlement. However, the Agency does not provide any evidence such a settlement exists. Moreover, the Agency's rationale for dismissal improperly goes to the merits of Complainant's claims.
The matters alleged in Claims (1) - (3) show 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). Moreover, a fair reading of the complaint as a whole demonstrates that Complainant has alleged with sufficient particularity events that, if true, state a claim of unlawful hostile work environment, which includes Claim 7, determined by the Agency as having been too vague to state justiciable claim.
The Agency dismissed Claims (4) - (6) and Claims (8) and (9) on the grounds of untimely EEO Counselor contact. However, Complainant stated in her formal complaint that the matters raised therein all constituted incidents of alleged Agency harassment. On appeal, moreover, Complainant expressly asserts that the subject claims "are part of a pattern of harassment that continued from 2006 to the present." By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Because some of the claims were timely brought to the attention of an EEO Counselor, as discussed above in our analysis, we determine that all claims were timely raised, given the circumstances of this case.
The Agency's dismissal of the formal complaint for the various grounds identified herein is REVERSED. Complainant's formal complaint, herein identified as a harassment claim, is REMANDED to the Agency for further processing in accordance with the ORDER below..
Because we reverse the Agency's final decision, we decline to address Complainant's request for sanctions.
ORDER (E0610)
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 (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 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 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
January 25, 2011
__________________
Date
2
0120110048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110048