0120090192
03-31-2009
Laura L. Cicco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Laura L. Cicco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090192
Agency No. 1C-151-0028-08
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated September 9, 2008, 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 sex (female) and reprisal for prior
protected EEO activity from April 2006 to May 24, 2008.
The FAD dismissed the complaint for failure to timely contact an EEO
counselor. It reasoned that the last act of alleged discrimination
occurred in April 2008, and complainant did not initiate contact with
an EEO counselor until June 27, 2008, beyond the 45 calendar day time
limitation. The FAD also dismissed the complaint for failure to state
a claim. It reasoned that the complaint was vague and lacked specificity,
some claims did not involve complainant, and the complaint did not rise
to the level of actionable harassment.
At the time of her complaint, complainant was a mail handler. She became
an acting supervisor (204B) in April 2006, and returned to her regular
mail handler craft in November 2007. Complainant's complaint contains
scores of incidents over an approximately two year period. Complainant
alleged discrimination and hostile work environment based on sex and
reprisal when:
1. she was sexually harassed by T.P., a supervisor, during her 90 day
probationary period (from approximately November 28, 2005 through February
2006),
2. she was sexually harassed by J.H., an allied supervisor, in February
2006,
3. she was subjected to sex and other harassment by the plant manager
from April 2006 to January 2007,
4. a mail handler, who was previously terminated after threatening to
hit with baseball bat and shoot some managers, was allowed to return to
work in the second part 2006 by the plant manager (the mail handler was
then terminated again),
5. in late December 2006, lead acting manager T.A. sexually harassed
complainant's female supervisor K.Z. when he walked into the office and
screamed profanity in a jealous rage about K.Z. being with another man
and T.A. thought she was interested in him,
6. right after the above incident occurred, the mail section where
complainant and K.Z. worked (complainant as an acting supervisor) started
getting less staff resources, T.A. demanded they more closely supervise
the operation, standards were tightened; and on March 17, 2007, allied
lead manager M.H. worked against complainant by dictating ineffective
staffing location decisions, and continued to try to set her up to fail
as an acting supervisor,
7. effective April 5, 2007, K.Z. was reassigned and demoted and was
replaced by allied lead manager M.H.,
8. complainant's operation was monitored by the plant manager during
the week of April 19, 2007,
9. around this time M.H. and the lead manager of flats, M.C., tried to
set complainant up to fail by assigning insufficient staffing to her
mail section,
10. M.H. denied complainant's request for leave for Saturday, July 7,
2007, and accused her of fabricating her reason for the leave request,
11. M.H. told complainant that she could not have the weekend of September
22, 2007, off, and she would have to work one shift as a craft mail
handler,
12. while out of stress leave from September 15, 2007 to January 10,
2008, a series of actions occurred:
a. complainant received a notice to return to duty dated November 14,
2007, by M.H.,
b. complainant was released from her detail as an acting supervisor and
returned to the mail handler craft in November 2007 by M.H., and
c. complainant was sent a absence without leave (AWOL) letter dated
December 28, 2007, by the assistant to the lead manager of flats, L.M.,
13. when complainant was on her way to the agency medical unit on January
7, 2008, to give medical documentation clearing her to return to work,
M.C. demanded she tell him why she had been off work,
14. during the first week of complainant's return to work starting January
10, 2008, M.C. and the manager of Tour 3, B.U., closely monitored her,
15. M.C. denied complainant's request for a schedule change to make her
days off Good Friday March 3, 2008, and Easter Sunday, March 23, 2008,
instead she took annual leave,
16. on a day in April 2008, M.C. did not permit a supervisor to chat
with complainant while she was working on a machine,
17. complainant was not selected for the position of Supervisor Customer
Service, vacancy announcement E07073, by letter dated April 7, 2008,
18. by letter dated April 28, 2008, to the U.S. Department of Labor,
Office of Workers' Compensation Programs (OWCP), human resources
specialist R.C. controverted complainant's claim for OWCP,
19. complainant received a letter of warning dated May 2, 2008, by
A.P, the supervisor of distribution operations, tour 3, for not timely
reporting being injured,1 and
20. on May 24, 2008, complainant was told by female supervisor D.J. that
A.P. humiliated her by swinging his arm back like he was going to hit
her and yelling "this is how a white boy says it, fuck you asshole."2
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). Under 29 C.F.R. � 1614.105(a)(2), an agency shall
extend the 45 day time limit to initiate EEO counseling for reasons
considered sufficient by the agency or Commission. The Supreme Court
has held that a complainant alleging a hostile work environment will not
be time barred if all acts constituting the claim are part of the same
unlawful practice and at least one act falls within the filing period.
See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10,
2002). The Court further held, however, that "discrete discriminatory
acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges." Id. Finally, the Court held
that such untimely discrete acts may be used as background evidence in
support of a timely claim. Id.
Here, the only act falling within the filing period was complainant
being told on May 24, 2008, by supervisor D.J. that A.P. humiliated her
by swinging his arm back like he was going to hit her and yelling "this
is how a white boy says it, fuck you asshole." We find that this was not
part of the alleged hostile work environment claimed by complainant for
the following reasons. It was not directed at complainant, and she did
not witness the incident. It was an allegedly racial incident against
another, and complainant's claim of hostile work environment is based
on sex and reprisal. Finally, A.P.'s involvement in alleged hostile
work environment was isolated and minimal.
Nevertheless, we find that the agency should have extended the 45 day time
limit to accept claim 3 for investigation. Complainant contacted human
resources alleging claim 3 on or about January 24, 2007. On appeal,
complainant contends that when she initiated her action with the then
acting manager of human resources and the acting lead executive/district
manager, they told her she would receive a written finding. Complainant
writes that she was told she could file a EEO complaint after the agency
made its finding. Human resources conducted an investigation, and on
December 10, 2007, decided to take no further action. Complainant writes
she never received the written finding (and the record does not show she
was otherwise notified of it). The agency does not contest any of this.
Accordingly, we find that since complainant relied on the agency's advice,
the 45 day time limit should be extended.
The FAD also dismissed the complaint for failure to state a claim.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable.
Complainant timely sought EEO counseling on claim 20. We find this
matter fails to state a claim. It was not directed at complainant and
she did not witness it. Also, it is not part of complainant's hostile
work environment claim as it was an alleged racial incident against
another, and complainant's hostile work environment claim is one of sex
and reprisal. We also find that this matter would not reasonably likely
deter complainant from seeking EEO counseling.
We now turn to claim 3. Complainant contended that the Plant Manager told
her he liked the way she walked and liked to watch her walk multiple
times, frequently and flirtatiously complimented her on her looks,
always noticed and complimented her whenever she changed her physical
appearance such as her hair, took her hand and rubbed his thumb on it
under her long sweater sleeve and flirtatiously told her she was wearing
the sweater for style, repeatedly asked her to wear a Santa hat during the
holiday season even though she told him she did not want too, mysteriously
asked her if she had a nose for trouble, and gave her unwanted attention.
We find this sufficient to state a claim of harassment.
As the remaining claims were untimely counseled, we need not rule on
whether they state a claim.
The FAD is modified.
ORDER
The agency is ordered to process claim 3, as defined above, in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
March 31, 2009
__________________
Date
1 Prior to the complaint, the letter of warning was reduced to a
discussion.
2 On appeal, complainant characterizes this matter as D.J. being
"racially profiled."
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0120090192
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120090192