0120111101
05-25-2011
Martha C. Arciniega, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Martha C. Arciniega,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120111101
Agency No. 4F-920-0105-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 27, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a City Carrier at the Agency’s Post Office in Apple Valley, California.
On October 4, 2010, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination and a hostile work environment
on the bases of sex (female) and in reprisal for prior protected EEO
activity when:
1. In February 2010, a co-worker (CW1) made a comment suggesting a sexual
relationship between Complainant and another female co-worker;
2. On May 22, 2010, CW1 bumped into Complainant’s right arm from
behind; and,
3. On June 24, 2010, Complainant was interviewed without representation.
Initially, the Agency dismissed incident (1) pursuant to 29 C.F.R. §
1614.107(a)(2) for untimely EEO counselor contact. The Agency determined
that Complainant contacted an EEO counselor on July 1, 2010, approximately
122 days after the comment was made and well beyond the 45-day time limit.
Next, the Agency concluded that the totality of the circumstances and
actions complained of were not sufficiently severe or pervasive to alter
the conditions of her workplace. Therefore, the Agency dismissed the
entire complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to
state a claim.
On appeal, Complainant contends that the Agency improperly dismissed
her entire complaint. Complainant asserts that she intended incident
(1) to be used as background information for her complaint and incident
(1) was not intended to be a separate claim. Accordingly, Complainant
requests that the Commission reverse the Agency’s dismissal. The Agency
requests that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
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 forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The Commission finds 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.
This includes incidents that occurred outside the filing period that
the [Complainant] knew or should have known were actionable at the time
of their occurrence.” EEOC Compliance Manual, Section 2, Threshold
Issues at 2 - 75 (revised July 21, 2005) (citing National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 117(2002)).
Here, the record reflects that some of the incidents comprising
Complainant's hostile work environment claim (incidents (2) and (3))
occurred within the 45-day time period preceding Complainant's EEO
Counselor contact. Therefore, the Commission finds that the Agency's
characterization of incident (1) as a distinct claim was improper as
was its dismissal.
Failure to State a Claim
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides,
in relevant part, that an agency shall dismiss a complaint that fails
to state a claim. In Harris v. Forklift Sys., 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, at 21-22. Thus, not all claims of
harassment are actionable. Where a complaint does not challenge an
agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.
However, the anti-retaliation provisions of the employment discrimination
statutes seek to prevent an employer from interfering with an
employee's efforts to secure or advance enforcement of the statutes'
basic guarantees, and are not limited to actions affecting employment
terms and conditions. Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation,
Complainant must allege that: 1) she was subjected to an action which
a reasonable employee would have found materially adverse, and 2) the
action could dissuade a reasonable employee from filing a complaint
of discrimination. Id. While trivial harms would not satisfy the
initial prong of this inquiry, the significance of the act of alleged
retaliation will often depend upon the particular circumstances. See also
EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20,
1998) (any adverse treatment that is based upon a retaliatory motive and
is reasonably likely to deter the charging party or others from engaging
in protected activity states a claim).
A fair reading of the Complainant’s allegations in the instant
formal complaint, as well as the related EEO counseling report and
pre-complaint documents, reveals that Complainant alleges that Agency
management failed to take any action upon her claim of harassing
behavior by CW1. Additionally, Complainant contends that she was given
an investigative interview without representation when she complained
about CW1’s actions. Based on the record here and the above criteria,
the Commission finds that the Agency improperly dismissed Complainant's
claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Commission concludes
that the Agency’s actions were materially adverse to Complainant
and could have dissuaded a reasonable employee from filing a complaint
of discrimination. Accordingly, the Commission REVERSES the Agency's
dismissal of the complaint, and REMANDS this matter to the Agency for
further processing in accordance with the ORDER below.
ORDER (E0610)
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 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 (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 (M0610)
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 tends 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 9-18 (Nov. 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 (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 (Z0610)
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
May 25, 2011
Date
2
0120111101
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111101