0120181973_0120181974_0120181975
08-31-2018
Margeret M,1 Arlette W, Shanti N, Complainants, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Margeret M,1
Arlette W,
Shanti N,
Complainants,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal Nos. 0120181973, 0120181974, & 0120181975
Agency No. 4G-700-0053-18, 4G-700-0055-18, 4G-700-0054-18
DECISION
Complainant 1, Complainant 2, and Complainant 3 filed timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decisions dated April 26, 2018, April 25, 2018, and April 25, 2018 dismissing their complaints 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 1, 2, and 3 worked as Rural Carrier Associates at the Agency's Drew Station facility in Lake Charles, Louisiana.
On February 1, 2018, Complainant 1 contacted the EEO Counselor alleging discrimination. The matter was not resolved informally. On April 12, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when: on November 17, 2017, the Manager watched her all day long, and made comments which she believed constituted sexual harassment. He also stated that she would not be paid for the day's work.
The Agency dismissed Complainant 1's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely EEO Counselor contact. The instant appeal followed. Complainant 1 requested that the Commission allow her complaint to continue by tolling of the timeframes for equitable purposes. Complainant 1 indicated that due to the harassment, she resigned. She was instructed that she had no avenue of recourse regarding the Manager's actions. She was later contacted on February 1, 2018, by another coworker who informed her that she had been subjected to sexual harassment as well at the hands of the Manager. It was at that time she became aware that she could raise her claim of harassment with the Agency. On the same day, Complainant made contact with the EEO Counselor.
On February 7, 2018, Complainant 2 contacted the EEO Counselor alleging sexual harassment by the Manager. The matter was not resolved informally and on March 6, 2018, Complainant 2 received her Notice of Right to File her formal complaint. On April 12, 2018, Complainant 2 filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when: on October 21, 2017, the Manager made sexual advances towards her and management did nothing.
The Agency dismissed Complainant 2's formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2) finding that Complainant 2 failed to file her formal complaint within 15 days of receiving her Notice of Right to File. This appeal followed.
Complainant 2 appealed asserting that from the moment the Manager transferred into the facility, he subjected Complainant 2 to sexual harassment. She indicated that the harassment continued until she resigned from the workplace. She noted that the first day he started, he called himself the HNIC which she stated meant "Head N***** in Charge" and that he made offensive comments which were sexual in nature. The Manager asked her if she was happy in her marriage and noted that "you're feisty, I like 'em like that, it gives me a thrill." Complainant 2 stated that when she had been out, the Manager stated that he would excuse her for being off if "she got down on her knees" and told her not to pass out at work or he would be forced to do mouth to mouth on her; have his legs over her; and he would be near her crotch. When Complainant 2 informed the Manager she was resigning, he told her to give him her badge so that he can look at her while he relieved himself sexually. Complainant 2 asserted that she informed management of the Manager's action. Management told Complainant 2 that they had heard that the Manager was "flirty" and "fresh." However, nothing was done about it. Based on the events Complainant 2 experienced, she asked that the time period be tolled and that her complaint be remanded for further processing.
On February 3, 2018, Complainant 3 contacted the EEO Counselor alleging that she had been subjected to sexual harassment. When the matter was not resolved informally, Complainant was issued a Notice of Right to File her formal complaint on March 5, 2018. On April 12, 2018, Complainant 3 filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when: between September 18, 2017 and October 4, 2017, the Manager made sexual advances towards her and management did nothing.
The Agency dismissed Complainant 3's formal complaint to 29 C.F.R. � 1614.107(a)(2) finding that Complainant 2 failed to file her formal complaint within 15 days of receiving her Notice of Right to File. This appeal followed.
Complainant 3 appealed asking that the Commission toll the time frames. Complainant 3 repeated the same information regarding the Manager entering the facility and stating that he is the HNIC. Complainant 3 noted that she too was subjected to sexual harassment. She indicated that the Manager came into her workspace and began to rub up against her arm. She then asserted that he stated, "I especially appreciate you, I love you." She indicated that the Manager told her that he could spot a "baby Mama" and that he would want her to be closer to his house and he could make her his baby Mama. He would refer to her as his "Bae," "Boo," and "Baby Mama." The Manager would tell her that she needed a "real man" and told her she needed to have a baby. Despite constant complaints to management, nothing was done. Complainant contacted the EEO Counselor when she learned that she could file an EEO complaint. As such, she asked that the Commission reverse the Agency's dismissal of her complaint.
ANALYSIS AND FINDINGS
Upon review of the records, we find that the three appeals involve the same management official, namely the Manager. Further, Complainant 1, Complainant 2 and Complainant 3 all assert that they were subjected to sexual harassment by the Manager. We find that for the sake of administrative economy, we consolidate the three appeals into the instant decision.
A review of the records shows that the Manager was assigned to the Drew Station in September 2017. From the moment the Manager arrived, Complainant 1, Complainant 2 and Complainant 3 were subjected to sexual harassment. Each indicated that the Manager referred to himself as the "HNIC." They all noted that he was belligerent, made grossly inappropriate comments for the workplace, and made references to sex.
In addition, the record included a copy of the Agency's internal investigation. The investigation indicated that at least seven other women had alleged that the Manager had subjected them to sexual harassment. The report indicated that he touched women and would tell them "I love you." Multiple women indicated that he would tell them that he loved them. When he was told that the individual had a boyfriend, the Manager told her that she could be his "baby's mama" and he would take care of her noting that he has 13 kids and his wife is pregnant with twins. He would call employees some fifteen times in one day and was combative. He told women that he needed them around him. He would say something about "talking under [a woman's] clothes." Women complained that the Manager would hug them and grab their buttocks. In addition, the women in the facility reported that the Manager would refer to women being on their knees, comment about his sperm count, and indicated that if his female employees gave him a little, he would give them a lot. For example, one woman asserted that he asked her to cook for him naked and "all would be forgiven."
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106. EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. In addition, the regulations require the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
Based on the unique facts of this case, the Commission determines that it is appropriate to reverse the Agency's final decisions and remand the complaints for further processing. 29 C.F.R. � 1614.604(c) provides that the time limitations provided for in the EEO complaint processing regulations are subject to waiver, estoppel and equitable tolling. Under this authority, we find that this is an appropriate case to excuse Complainant 1's failure to contact the appropriate EEO counselor within the regulatory 45-day period and to excuse the delay of Complainant 2 and Complainant 3 for filing their EEO complaints outside of the 15-day time limit. In reaching this decision, we have considered that the complaints at issue concern allegations by three employees involving the Manager. The Complainants asserted that the Manager engaged in egregious behavior including assault, physical touching and requests for sexual favors. Under these facts, the Commission finds it appropriate to require the Agency to continue processing of the complaints, despite Complainant 1's delay in seeking EEO counseling and Complainant 2 and 3's delays in filing their formal complaints. In addition, we note that the Agency should consolidate the complaints as they involve similar claims of sexual harassment at the same facility by the same management official.
CONCLUSION
Accordingly, the Agency's final decisions dismissing Complainant 1, 2, and 3's complaints are REVERSED and the matters are REMANDED as set forth below.
ORDER (E0618)
The Agency is ordered to process the remanded complaints 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.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
August 31, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainants' names when the decision is published to non-parties and the Commission's website.
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0120181973, 0120181974, & 0120181975