0120161298
03-09-2017
Lula N.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lula N.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120161298
Agency No. 4B070003616
DECISION
Complainant filed a timely appeal with this Commission from the Agency's February 16, 2016 decision, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EAS-16 Retail Specialist at the Agency's New Jersey District Office facility in Newark, New Jersey. She was serving a detail assignment in Health and Resource Management.
On January 12, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the basis of reprisal for prior protected EEO activity under Title VII, when:
1. From November 9, 2015 to November 14, 2015, she received 40 hours of Leave without Pay and was marked Absent without Leave (AWOL); and
2. On November 16, 2015, she was informed that her Health and Resource detail would be terminated.
Complainant has prior EEO activity. The record shows that Complainant had a case in court, but she states that the court claims are not the same as the ones raised in this complaint. We note that the court claims pertained to incidents occurring in 2011, and are referenced as Agency No. 4B-070-0180-11, Complainant v. United States Postal Service, EEOC Appeal 0120113964 (June 14, 2013) and pending "at the federal court level" in "Civil Case Action No. 2:12-CV-02670-MCA-LDW." The instant complaint pertains to alleged acts of discrimination occurring in November of 2015.
As background, Complainant alleged that since filing her EEO initial complaint, she has had problems with the Human Resource Officials. On November 20, 2015, Complainant contacted an EEO Counselor claiming that, as an act of retaliation, on November 16, 2015, she was informed that her Health and Resource detail would be terminated. Complainant averred that she was subjected to harassment and reprisal when she was placed on unpaid leave and AWOL, although she asserts that she called in to request leave for the week of November 8-14, 2015 through the automated call-in system. She tried to notify her immediate supervisor, who was not available. Complainant contacted another supervisor and left a message. That supervisor denied receiving the call. Complainant was charged AWOL. When the immediate supervisor returned to work on November 20, 2015, she verified that Complainant had left her messages and the supervisor initiated a payroll adjustment. Complainant was provided 8 hours of Holiday Pay, 21 hours of sick leave and the remainder of her absence was changed to Leave without Pay. On November 16, 2015, she was informed that her detail was terminated and told to leave the premises.
The Agency issued a final decision dismissing the entire complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency reasoned that Complainant received all the relief she would have received if she prevailed and, therefore, was no longer an aggrieved employee. The decision mentioned that the Agency received Complainant's February 11, 2016 PS Form 2569-C, but Complainant did not provide objective proof of any of the alleged damages incurred. The decision did not address the November 16, 2015 termination of the detail assignment. Next, the Agency concluded that the complaint should be dismissed as moot, reasoning that "there is no reasonable expectation that the alleged action will recur." With regard to the harassment claim, the Agency stated that Complainant did not cite a scenario that would deter a reasonable person from engaging in protected activity.
CONTENTIONS ON APPEAL
On appeal, Complainant reasserts her claim that she has been subjected to an ongoing harassment and that her claims in this appeal pertain to a different time period and are not encompassed by her earlier complaint.
The Agency maintains that Complainant provided no substantive evidence that would persuade the Commission to disturb its decision and asked that we affirm its dismissal decision.
ANALYSIS AND FINDINGS
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that a claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In this case, a fair reading of the complaint shows that Complainant has alleged ongoing harassment against her, in November of 2015, when her she was marked Absent without Leave, placed on unpaid leave, and her detail was terminated. We find that Complainant's allegations are sufficient to state a claim of a hostile work environment. We further find that the record does not show that she received all of the relief to which she would be entitled if she prevailed. She remains employed and she claimed compensatory damages. We find that the issue is not moot.
We disagree with the Agency's conclusion that Complainant failed to state a claim. Consequently, we find that Complainant's complaint was improperly dismissed for failure to state a claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We hereby REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
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 was issued. 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 was issued, 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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 9, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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