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