Geraldine M. Scott, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionDec 2, 2011
0120113150 (E.E.O.C. Dec. 2, 2011)

0120113150

12-02-2011

Geraldine M. Scott, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.




Geraldine M. Scott,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120113150

Agency No. 1H-336-0031-11

DECISION

On June 16, 2011, Complainant filed an appeal from the Agency’s decision

dated May 13, 2011, dismissing her complaint of unlawful employment

discrimination in violation of the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

ISSUE PRESENTED

The issue presented is whether the Agency properly dismissed Complainant's

complaint for failure to state a claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Mail Processing Clerk at the Agency’s Processing & Distribution

Center in Tampa, Florida. On April 20, 2011, Complainant filed a formal

complaint alleging that the Agency subjected her to discrimination on

the bases of age (53) and reprisal for prior protected EEO activity

under the ADEA when:

1. On December 7, 2010, she was harassed about her work performance

resulting in younger employees being used to perform tasks;

2. On March 4, 2011, a co-worker accused her of not performing a job

function1; and

3. On March 5, 2011, she was given an Investigative Interview.

On May 13, 2011, the Agency issued a final decision dismissing the

instant complaint. Specifically, the Agency found that Complainant was

not an "aggrieved" employee within the meaning of 29 C.F.R. §1614.103

and that even if she had been aggrieved, the allegations stated were

not severe or pervasive enough to create a discriminatorily hostile or

abusive work environment.

CONTENTIONS ON APPEAL

On appeal, Complainant asserted that the Agency's final decision

dismissing her complaint was improper. With regard to claim 1 that

she was harassed about her work performance resulting in younger

employees being used to perform tasks, Complainant stated that she was

“strategically segregated outside [her] principle assignment area”

and that younger, contract workers were being used to replace career

employees. Complainant further stated that when addressing an issue

with her Manager, District Operations (MDO), the MDO became aggressive,

“yelling, screaming, waving, and pointing” while on the workroom

floor.

With regard to claim 2 that she was accused of not performing a job

function, Complainant stated that when relieving her younger co-workers

so that they could take a break, her supervisor accused her of not

re-running rejected mail, which was the responsibility of said co-workers.

Complainant stated that her supervisor ran up to her, snatched labels

out of her hand, and yelled at her.

With regard to claim 3 that she was given an Investigatory Interview,

Complainant stated that the Interview was in response to the incident

referenced in claim 2. Complainant alleged that her supervisor did not

speak with the younger co-workers involved. We note that Complainant

alleged additional discriminatory acts on behalf of the Agency, as

described below.

The Agency’s Response to Complainant’s Appeal did not raise any

additional arguments other than those addressed in the final decision.

ANALYSIS AND FINDINGS

On appeal, Complainant demonstrated that additional allegations

of discrimination were not addressed by the Agency in its letter of

acceptance and in its resultant final decision. A review of the record

shows that two formal complaint forms were submitted by Complainant.

One form was dated on April 19, 2011, and one form was dated the following

day, April 20, 2011. Both forms were seemingly sent to the Agency in

the same envelope, which was postmarked April 20, 2011.

The Agency only addressed the allegations taken from the April 19, 2011

formal complaint. The Agency did not address the following allegations,

which have been taken from the April 20, 2011, complaint and summarized

below:

Complainant was subjected to discrimination on the bases of age (53)

and reprisal for prior protected EEO activity under the ADEA when:

1. On February 7, 2011, Complainant was harassed for requesting scheduled

sick leave for an optical examination.

2. On February 16, 2011, when meeting with a supervisor, Complainant

was denied union representation. During the meeting, S1 slammed a stack

of documents onto the table and each time Complainant stood up to exit,

S1 stood up as well.

3. On February 20, 2011, the MDO was made aware of the incident on

February 16, 2011, and the incident was ignored.

4. Between February 21, 2011 and March 10, 2011, Complainant was denied

monetary resolve through the grievance process three times.

5. On April 6, 2011, S2 harassed Complainant with falsely documented

attendance records and was instructed by the MDO to conduct an

investigative interview for attendance. In accordance, S1 falsified

documentation, S2 changed the attendance records of employees under forty

(40) years old, and the MDO instructed S1 to harass and threaten “an

employee” over the age of forty (40).

6. On an unspecified date, Complainant was retaliated against with regard

to Agency Nos. 1H-336-0002-09 and 1H-336-0099-09.

The Agency did not address these allegations in its dismissal. The

Commission has held that an agency's failure to address allegations

is tantamount to a dismissal. See Kapp v. Dep’t of Navy, EEOC

Request No. 05940662 (Jan. 23, 1995). We therefore analyze all of the

aforementioned issues as if the Agency had dismissed them all for failure

to state a claim.

EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides, in relevant part,

that an agency shall dismiss a complaint, or portion thereof, 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).

Upon review of the record, we find that, considering the totality of the

circumstances, the Agency improperly dismissed the claims at issue for

failure to state a claim. In Harris v. Forklift Sys., Inc., 310 U.S. 17,

21 (1993), the Supreme Court found that harassment is actionable, even

absent a claim that an agency's action harmed a complainant with regard

to a specific term, condition or privilege of employment, as long as the

complainant can otherwise demonstrate that the conduct was engaged in

with the purpose of creating a hostile work environment, and that the

conduct is sufficiently severe or pervasive as to alter the conditions

of the complainant's employment. A complaint should not be dismissed

for failure to state a claim unless it appears beyond doubt that the

complainant cannot proffer 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).

After a careful review of the record, we find that Complainant states

a claim of hostile work environment harassment. 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. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July

12, 1996); Banks v. Health and Human Serv., EEOC Request No. 05940481

(Feb. 16, 1995). Here, however, we note that Complainant alleges,

among other things, that she was harassed on numerous occasions about her

performance and for taking sick leave, that management conspired against

her, and that her supervisors acted in an intimidating manner on more than

one occasion. This set of allegations is sufficient to state a claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we REVERSE the

Agency’s final decision and REMAND the complaint for further processing

consistent with the Commission's decision and applicable regulations.

The Agency shall comply with the Commission's ORDER set forth below.

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

December 2, 2011

Date

1 In her appeal, Complainant states that her supervisor, not a co-worker,

accused her of not performing the job function at issue.

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01-2011-3150

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120113150