0120093383
01-21-2010
Mary Egan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary Egan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093383
Agency No. 4F-926-0147-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated June 26, 2009, 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. Upon review, the Commission finds that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a).
During the pertinent period, complainant worked as a Sales and Service
Associate at a La Puente, California facility of the agency. On May
5, 2009, complainant initiated EEO contact alleging that the agency
subjected her to a hostile work environment on the bases of national
origin (Mexican), sex (female), age (over 40), and reprisal for prior
protected EEO activity when it (1) denied her the opportunity to serve as
an acting supervisor (204B) but allowed a coworker to do so in April 2009,
(2) denied her Family & Medical Leave Act (FMLA) usage on May 5, 2009,
and (3) on May 5, informed complainant that she would have to repay a
window money shortage.
In its June 26 final decision, the agency dismissed complainant's claims
pursuant to 29 C.F.R. �� 1614.107(a)(1) & (2), for failure to state a
claim and untimely EEO Counselor contact. The agency stated, for (1) and
(3), "the actions that triggered the 45 day timeframe were the denial of
[c]omplainant's request to act as a 204B in September or October 2008,
and the Letter of Demand issued to her on January 15, 2009," when she
had reasonable suspicion of discrimination. For (2), the agency stated
that the allegation fails to state a claim because complainant was not
aggrieved by the agency's action. The instant appeal from complainant
followed. On appeal, complainant stated that she initially requested to
serve as a 204B in September 2008 and continued to make requests through
April 2009, when she learned that a comparator employee was allowed
to do so. Further, as to (3), complainant stated that, in March 2009,
her money shortage was resolved through the grievance process so it was
a new matter when she received a subsequent demand for the same shortage.
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. An agency shall accept a complaint from any 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).
Alternatively, 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.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). A complaint
should not be dismissed for failure to state a claim unless it appears
beyond doubt that the complainant cannot prove a set of facts in support
of the claim which would entitle the complainant to relief. The trier of
fact must consider all of the alleged harassing incidents and remarks, and
considering them together in the light most favorable to the complainant,
determine whether they are sufficient to state a claim. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
After a careful review of the record, we find that the incidents described
in (1) through (3) state an overall claim of harassment and that at
least one incident falls within the 45-day time limit for contacting an
EEO Counselor1. In the case at hand, complainant alleged hostile work
environment harassment when she initiated contact with an EEO counselor
on May 5, 2009. She provided non-discrete acts as evidence to support
her claim of harassment and the latter two incidents occurred close to
or the same day she initiated EEO contact. After careful review of the
record and based on the above, the Commission REVERSES the agency's
final decision and REMANDS it consistent with this decision and the
Order below.
ORDER (E0408)
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 (K1208)
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 (M1208)
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 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 (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
January 21, 2010
__________________
Date
1 See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117
(2002).
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0120093383
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093383