0120130067
02-15-2013
Michell Shavers, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Michell Shavers,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120130067
Agency No. 4J-493-0048-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 10, 2012, dismissing a formal 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
During the period at issue, Complainant worked as a Clerk at the Agency's Coleman Post Office facility in Coleman, Michigan.
On May 4, 2012, Complainant initiated contact with an EEO Counselor. An Information for Pre-Complaint Counseling form reflects that Complainant claimed that she had been improperly issued a suspension, and was informed that a termination would soon follow unless Complainant began to cooperate with the rules and regulations and "standards of doing things" that were imposed by an Agency postmaster. Complainant noted further that the postmaster is "brushing up" against her while she works at a POS machine, and as a remedy, Complainant sought the "ending of brushing up against me," as well as an end to constant threats of suspension or termination.
The record also contains a copy of an EEO Dispute Resolution Specialist's Inquiry Report, which indicates that Complainant claimed that she was brushed up against when working on her machine in November 2011; that the postmaster was supposed to assist her on March 4, 2012, but instead simply leaned against a wall; and that on April 11, 2012, she was issued a seven-day suspension.
Informal efforts to resolve Complainant's concerns were unsuccessful.
On August 15, 2012, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the bases of sex (female) and in reprisal for prior protected activity.
In her formal complaint, Complainant stated that following the filing of a "first EEO complaint," her supervisor issued a suspension which remains active; has misrepresented Complainant in her files; and that as a consequence, such misrepresentation has resulted in denial letters of transfer to numerous stations and plants.
The record also contains a statement prepared by Complainant on May 19, 2012, indicating that matters have gotten worse regarding her supervisor; that the supervisor has sought retaliation against here for consulting with an EEO office about their respective differences; that he was taken her hours away; and that he has misrepresented her evaluations.
On September 10, 2012, the Agency issued the instant final decision. Therein, the Agency determined that the formal complaint was comprised exclusively of the following claim:
On March 4, 2012, management leaned against a wall instead of providing you with assistance.
The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2), and on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
The Agency found that Complainant had raised additional issues during pre-complaint processing, but that the issues were not included in the formal complaint. The Agency therefore determined that "these issues are considered abandoned."
ANALYSIS AND FINDINGS
As a preliminary matter, we are confused by the Agency's assessment in its final decision, that the instant formal complaint was confined exclusively of the issue of an Agency official standing against a wall, instead of assisting Complainant. The formal complaint makes explicit reference to the issuance of a suspension, misrepresentation of files, and denial letters of transfer to numerous stations and plants.
In short, the Commission finds that the Agency totally misread Complainant's formal complaint. Moreover, a fair reading of the record in its entirety, including pre-complaint documents and the formal complaint itself, reflects that Complainant has alleged harassment by an Agency supervisor that has been at times sexual in nature, has resulted in inappropriate disciplinary actions, and has resulted in various other allegedly inappropriate actions. By alleging a pattern of harassment, complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Moreover, as a fair reading of the record indicates that some of these alleged incidents occurred within the forty-five day time frame preceding initial EEO Counselor contact, we find that all matters in the harassment claim may be construed as timely raised with an EEO Counselor
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's formal complaint on the grounds set forth in its final decision is REVERSED. The formal complaint, as defined herein, is REMANDED 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 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
February 15, 2013
__________________
Date
2
0120130067
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130067