0120093319
01-13-2010
Joi C. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joi C. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093319
Agency No. 4K270005909
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 6, 2009, 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.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (African American) and sex (female)
resulting in a hostile work environment when:
1) Effective February 19, 2009, complainant was placed on Emergency
Placement in Off-Duty Status;
2) on February 24, 2009 complainant was issued a fourteen day suspension;
and
3) on unspecified dates complainant has been subjected to unfavorable
scheduling, and made to work under higher standards than otherwise
similarly situated coworkers.
The agency dismissed claims 1 and 3 for failure to state a claim, finding
that complainant incurred no harm from the actions because the Emergency
Placement was rescinded and the remaining actions were "common workplace
occurrences." The agency further found that the alleged actions were
insufficiently severe to state a claim of hostile work environment.
Finally, the agency found that all three claims should be dismissed
pursuant to 29 C.F.R. � 1614.107(a)(2) and 106(a) for untimely filing
of the Formal Complaint. The instant appeal followed.
Regarding the timeliness issue, we find that complainant's Formal
Complaint was timely filed. The agency has shown that complainant
received the Right to File notice on May 26, 2009. She therefore had
until June 10, 2009 to file her Formal Complaint. The Formal Complaint
itself is dated June 6, 2009 and the agency date-stamp indicates that it
was received by the agency on June 15, 2009. However, "a document shall
be deemed timely if it is received or postmarked before the expiration of
the applicable filing period, or, in the absence of a legible postmark,
if it is received by mail within five days of the expiration of the
applicable filing period." 29 C.F.R. � 1614.604(b). The envelope
mailed by complainant to the agency does not contain a legible postmark.
Since the agency's date stamp indicates it was received on June 15,
which is within five days of June 10, the expiration date of the filing
period, we find that the Formal Complaint was timely filed.
In further dismissing claims 1 and 3 for failure to state a claim, we
find that the agency improperly considered complainant's allegations
in piece-meal fashion, rather than as evidentiary examples of a single
claim of discriminatory harassment sufficient to establish a hostile
work environment. Therefore, the claim must be assessed based on the
cumulative effect of the alleged actions on the part of the agency.
In this case, we conclude that complainant has made sufficient allegations
to state a viable claim of discriminatory harassment that requires further
processing.1 We also note that the agency has asserted that complainant
has not presented sufficient information to show she incurred any harm
or loss when she was allegedly subjected to unfavorable work scheduling
and made to work under higher standards than her coworkers. However,
the Commission finds that, in reaching this conclusion, the agency
has addressed the merits of complainant's complaint without a proper
investigation as required by the regulations. See Osborne v. Department
of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United
States Postal Service, EEOC Request No. 05930220 (August 12, 1993);
Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642
(August 15, 1991).
Accordingly, the dismissal of this complaint is REVERSED and it is
REMANDED to the agency for further processing.
ORDER (E0408)
The agency is ordered to process the remanded claims 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 (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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 13, 2010
__________________
Date
1 In addition, she has a separate claim of disparate treatment regarding
the suspension that, if proven, might entitle her to additional equitable
relief.
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0120093319
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093319