0120181767
08-15-2018
Margeret M,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Margeret M,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120181767
Agency No. 1J482001318
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's April 5, 2018 dismissal of 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 a Mail Handler at the Agency's Pontiac Metroplex Processing and Distribution Center in Pontiac, Michigan.
On March 8, 2018, Complainant filed a formal complaint alleging she had been subjected to harassment on the basis of sex (female) when:
1. On unspecified dates prior to June 3, 2017, her manager ("M1") touched her and made inappropriate comments to her.
Her complaint further alleged harassment on the bases of both sex and reprisal for engaging in prior protected activity (reporting M1's alleged actions in Claim 1 to the Union) when:2
2. On an unspecified date, prior to June 3, 2017, but after Complainant reported the alleged harassment to the Union, M1 denied her resubmission of a schedule change request even though it had been in place for months,
3. On June 3, 2017, she became aware that M1 told other employees that she "filed a complaint for sexual harassment on him with the Mail Handler's Union... made threats to fire [her,] and warned other employees to keep their distance from [her], referring to [Complainant] as a bitch/ho," and,
4. On November 26, 2017, a co-worker told Complainant that she had asked M1 why Complainant had not been at work from June through October 2017, and M1 responded that Complainant had taken personal leave because she was at risk of losing her children to Child Protective Services.
The Agency dismissed Claims 1, 2, and 3 for untimely contact with an EEO Counselor, pursuant to 29 C.F.R. � 1614.107(a)(2).
The Agency dismissed Claim 4 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
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 (Apr. 21, 1994).
Timeliness
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
However, the Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period." EEOC Compliance Manual, Section 2, Threshold Issues al 2 - 75 (revised July 21, 2005) referencing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. Henderson v. Dep't of the Army, EEOC Appeal No. 0120132221 (Feb. 11, 2014) citing Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of).
It is undisputed that the alleged discriminatory act in Claim 4 was timely raised with an EEO Counselor, as Complainant became aware of it on November 26, 2017 and initiated contact on November 29, 2017. The actions alleged in Claims 1, 2, and 3 all occurred on or prior to June 3, 2017, well outside the 45-day deadline. Additionally, reasonable suspicion of sexual harassment existed at the time the allegations in Claims 1, 2, and 3 occurred, as indicated by Complainant reporting the matter to the Union and in her formal complaint.
Upon review, we find that the Agency erred by considering Claims 1, 2, and 3 separately from Claim 4, as all concern the same supervisor and similar actions. The 5-month gap between the alleged actions in Claims 1, 2, and 3 and the alleged discriminatory act in Claim 4 can be attributed to Complainant's absence, as she was on leave from June through October 2017. Complainant did not realize until she returned to work that M1 continued the alleged discriminatory actions by speaking negatively about her to her coworkers. Therefore, we find the incidents in Claims 1, 2, and 3, when considered with Claim 4, collectively constitute one unlawful employment practice, and all were timely raised with an EEO Counselor.
Sexual Harassment: Claims 1, 2, 3, and 4
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the 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). We have previously found that where complainant's multiple claims can establish an "on-going pattern of discriminatory harassment" his or her allegations are sufficiently severe and pervasive to state a claim of harassment. See Complainant v. Dep't of the Army, EEOC Appeal No. 0120130250 (Jan. 24, 2014), Zurlo v. United States Postal Serv., EEOC Appeal No. 0120110143 (Mar. 25, 2011) (finding the Agency's characterization of a complaint as "petty workplace disputes" and "common work place occurrences" improper, as the complainant's claims, considered together, established an "ongoing pattern of discriminatory harassment").
The Agency erroneously analyzed Claim 4 as a discrete act, resulting in an improper dismissal for failure to state a claim. See Dykes v. United States Postal Serv., EEOC Appeal No. 0120111438 (Jan. 13, 2012) (finding the agency improperly dismissed the complainant's allegations as discrete acts, when, considered together, her multiple assertions stated an actionable claim of discriminatory harassment). The record is silent as to the frequency and extent to which M1 disclosed Complainant's personal information in her absence, and the derogatory remarks he made about Complainant to her co-workers. However, considering the nature of the allegations, including M1's position of authority, and Management's alleged knowledge, we find Complainant has established an "ongoing pattern" of alleged harassment sufficiently severe and pervasive to state a claim of harassment based on sex.
Reprisal: Claims 2, 3, and 4
For allegations of reprisal, adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). We find Complainant states a claim of harassment based on reprisal, as the actions described in 2, 3, and 4, when considered together, are reasonably likely to deter protected activity.
CONCLUSION
Accordingly, the Agency's decision to dismiss Complainant's Complaint is REVERSED, and the matter is hereby REMANDED for further processing in accordance with this Decision and the ORDER below.
ORDER (E0618)
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.
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 15, 2018
__________________
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.
2 Although Complainant did not check the box next to "Reprisal" in her formal complaint, we have exercised our "liberal latitude to clarify the bases of discrimination" to include reprisal for claims 2, 3, and 4 based on the claims section of her formal complaint, which contains Complainant's account of reporting the alleged harassment in Claim 1 to the Union. See, Azadpour v. Dep't of Transp., EEOC Appeal No. 0120121414 (Jun. 12, 2012) (Although the complainant failed to check a box on his formal complaint form to indicate the basis of alleged discrimination he was claiming, the EEO Counselor's report clearly indicated that Complainant was raising the basis of retaliation) see also McPherson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112997 (Nov. 4, 2011) (While the complainant did not check a box on the complaint form, the narrative sections of her complaint suggested that she was alleging discrimination based on age).
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