Maryann Tucker, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionDec 1, 2011
0120113194 (E.E.O.C. Dec. 1, 2011)

0120113194

12-01-2011

Maryann Tucker, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.




Maryann Tucker,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120113194

Agency No. 4G-330-0026-11

DECISION

Complainant filed a timely appeal from the Agency's decision dated May 24,

2011, 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., Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.,

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. § 621 et seq.

ISSUE PRESENTED

The issue presented is whether the Agency properly dismissed Complainant's

complaint for failure to state a claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant

worked as a Clerk at the Agency’s Post Office in Jupiter, Florida.

On May 16, 2011, Complainant filed a formal complaint alleging that the

Agency subjected her to a hostile work environment on the bases of sex

(female), disability (anxiety/depression), age (50), and reprisal for

prior protected EEO activity (under an EEO statute that was unspecified in

the record) when, since September 30, 2010, she was singled out, harassed,

intimidated, disrespected, yelled at, subjected to hostile remarks and,

on April 8, 2011, the Officer-in-Charge (OIC) told the supervisor to

follow her into the restroom.

On May 24, 2011, the Agency issued a final decision dismissing the instant

complaint for failure to state a claim in accordance with 29 C.F.R. §

1614.107(a)(1). Specifically, the Agency found that Complainant was

not an "aggrieved" employee within the meaning of 29 C.F.R. § 1614.103

and that even if she had been aggrieved, the allegations stated were

not severe or pervasive enough to create a discriminatorily hostile or

abusive work environment.

CONTENTIONS ON APPEAL

On appeal, Complainant asserted that the Agency's final decision

dismissing her complaint was improper. Complainant contended that

she was “verbally assaulted” on September 30, 2010, by her acting

supervisor in response to her work performance when he came within a few

inches of her face and began yelling at her while making threatening

body gestures. Additionally, Complainant contended that after she

engaged in EEO activity, she was subjected to “hostility, harassment,

retaliation and other things” by her OIC.

The Agency’s Response to Complainant’s Appeal did not raise any

additional arguments other than those addressed in the Agency’s final

decision.

ANALYSIS AND FINDINGS

We first note that after a thorough review of the record, we find

that the Agency has misconstrued the allegations in the complaint.

The Agency defined the complaint in its final decision as whether

Complainant was discriminated against on April 8, 2011, when she was

“harassed, intimidated, disrespected, and the Officer-in-Charge (OIC)

told the supervisor to follow [her] into the restroom.” This definition

characterized Complainant’s allegations as an isolated complaint of

discrimination. The essence of the complaint is that since September

30, 2010, Complainant has been subjected to a pattern of harassment

designed to single Complainant out, harass her, intimidate her, and be

disrespectful of her. These Agency actions allegedly included castigating

her, subjecting her to hostile remarks, and requiring a supervisor to

follow her into the restroom. Thus, it appears that Complainant is

alleging she was subjected to a hostile work environment. Therefore,

we have redefined the complaint as a claim of hostile work environment

harassment, beginning on September 30, 2010, and running through the

incident on April 8, 2011.

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 prior participation in

the EEO process. 29 C.F.R. §§ 1614.103, 1614.106(a).

A complaint of a hostile work environment 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. Dep’t of the Treasury,

EEOC Request No. 05970077 (Mar. 13, 1997).

We find that Complainant has stated a claim for hostile work environment

harassment based on her sex, disability, and age. She claimed in

her formal complaint that following her filing of an EEO complaint in

September 2010, she was retaliated against and harassed by the OIC.

She detailed incidents in which she was subjected to hostile remarks and

yelled at, and where she felt intimidated by the OIC. Additionally,

in its decision, the Agency used the incorrect standard for claims of

reprisal, finding that Complainant had not incurred a harm or loss,

instead of examining whether Complainant alleged an action that was

reasonably likely to deter an employee from engaging in protected

activity. The statutory retaliation clauses prohibit 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. See EEOC Compliance Manual, Section 8 “Retaliation,”

No. 915.003 (May 20, 1998). Under this standard as well, we find that

Complainant has stated a claim of hostile work environment based on

reprisal.

CONCLUSION

Therefore, the Agency's decision dismissing the complaint is REVERSED and

we REMAND the redefined complaint 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 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), at 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 (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 your appeal with the Commission, until

such time as the Agency issues its final decision on your complaint. 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

December 1, 2011

Date

2

01-2011-3194

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120113194