0120083362
11-06-2008
Margaret L. Russ, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Margaret L. Russ,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083362
Agency No. 4H300019008
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 7, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission
finds that complainant's complaint was improperly dismissed.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of disability (arthritis, degenerative bones,
back, carpal tunnel syndrome, heart) and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when,
from July 2007 through March 14, 2008, her co-workers harassed her and
made offensive comments to her about her disability. Complainant also
claimed that co-workers refused to help her or assist her, that they said
hurtful things to her when they are asked to assist her with letters
or to do things to help her. One co-worker was quoted as saying "I
don't like people who won't do their jobs and want people to do their
job for them." The EEO counseling report indicates that the supervisor
knew that employees were refusing to help complainant and that they were
making comments. The supervisor stated that the employees resented the
fact that complainant was assigned to perform duties which otherwise
would have provided them with overtime.
As an initial matter, the Commission notes that the agency dismissed the
complaint for failure to contact an EEO counselor in a timely manner,
asserting complainant knew she was being harassed in July 2007. However,
the United States 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 Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (June 10, 2002). The record in the instant case reveals
that complainant raised incidents of harassment (i.e. on March 14,
2008) that occurred less than 45 days from her initial contact with
an EEO counselor on April 9, 2008. As such, her claim of hostile work
environment harassment was timely raised and her complaint was improperly
dismissed on this ground.
The agency also dismissed the complaint, pursuant to 9 C.F.R. �
1614.107(a)(1), for failure to state a claim. However, the Commission
finds that the alleged actions of the co-workers are sufficient to
state a viable claim of discriminatory hostile work environment. We
find that the events described, if proven to be true, would indicate
that complainant has been subjected to harassment that was sufficiently
severe or pervasive to alter the conditions of her employment. See Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claim (discriminatory
hostile work environment) 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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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 19848,
Washington, D.C. 20036. 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
November 6, 2008
__________________
Date
2
0120083362
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120083362