0120102037
08-20-2010
Sandra Drew, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Sandra Drew,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120102037
Agency No. 1F924001810
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 16, 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
During the period at issue, Complainant was employed as a custodian at the Agency's Moreno Valley Office in Moreno Valley, California.
On February 10, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that Agency management subjected her to ongoing harassment sufficient to create a hostile work environment in reprisal for her participation in prior protected EEO activity. As examples of the ongoing harassment, Complainant provided the following events, while indicating that her claim was not "limited to" these incidents:
1. On December 5, 2009, Complainant was embarrassed at a stand-up meeting when she was questioned about her driver's license;
2. On December 23, 2009, Complainant's manager instructed her supervisor to issue Complainant discipline for cutting her hand;
3. On December 29, 2009, Complainant was issued a Letter of Warning (LOW), that was later downgraded to an Official Discussion;
4. On February 9, 2010, Complainant became aware that her OWCP paperwork was not submitted in a timely manner.
As remedies for the alleged harms inflicted, Complainant requests: (1) the Agency cease and desist the hostile working environment; (2) she be made whole for all lost wages and benefits; and (3) compensatory damages.
In its decision, the Agency dismissed the complaint. Specifically, the Agency found that claims 1 through 3 did not render the Complainant sufficiently aggrieved. Further, the Agency determined that claim 4 constituted a collateral attack on the EEO process.
On appeal, Complainant, through her representative, disputes the Agency's assertion that the claims taken together do not sufficiently state a viable claim because there was no concrete action taken by the Agency. Complainant argues that "[v]erbal harassment was followed by the issuance of discipline" when she was issued a LOW, later reduced to an Official Discussion. Complainant underscores another alleged incident involving an Agency manager, when, in July 2009, she was purportedly verbally abused in a broadcast over an Agency public address system, when she had been transported out of the Agency facility by ambulance.1
In response, the Agency maintains that "claims" 1-3 should be dismissed because Complainant has not suffered any personal harm related to a term, condition, or privilege of her employment. In doing so, the Agency argues that "an official discussion alone does not render an employee aggrieved." In addition, the Agency reduces "claim" 4 to a collateral attack upon the EEO proceedings.
ANALYSIS AND FINDINGS
To state a claim, Complainant must allege facts that, if proven true, would show an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
As an initial matter, we find that although Complainant specifically alleged retaliatory harassment, the Agency failed to analyze the incidents as a single hostile work environment claim, choosing instead to fragment and analyze the incidents as individual disparate treatment claims. In doing so, the Agency applied various dismissal bases to analyze each of the events proffered by Complainant to support her harassment claim, eventually dismissing the entire complaint.
Contrary to the Agency's analysis, Complainant correctly argues on appeal that her complaint should be viewed as a single harassment/hostile work environment claim. Complainant was clear on her complaint form that the events she described were only provided as examples, and were not the exclusive incidents forming her claim. When viewed in this light, the Commission concludes that Complainant has alleged sufficient facts in her complaint to state a justiciable claim and warrant further investigation to gather evidence to determine whether Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request no. 05970077 (March 13, 1997). Moreover, as Complainant has raised a retaliation claim, evidence should be gathered to determine whether the alleged agency actions were of a type reasonably likely to deter Complainant or others from engaging in protected activity. In investigating Complainant's claim, she should be provided with the opportunity to provide evidence of other incidents of alleged harassment in addition to the ones described on her complaint form.2
Accordingly, the Agency's dismissal is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the ORDER below
ORDER (E0610)
The Agency is ordered to process the remanded claim (retaliatory harassment/hostile work environment in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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
August 20, 2010
__________________
Date
1 The claim regarding being verbally abused over a broadcast system was the subject of a prior formal complaint, that the Agency dismissed for failure to state a claim. On appeal, the Commission affirmed the Agency's dismissal of this claim. Drew v. USPS, EEOC Appeal No. 0120100127 (March 11, 2010). In that case, this incident was the sole subject of the complaint.
2 The broadcast system incident referred to in note 1 of this decision may be included by Complainant during the investigation as background evidence.
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0120102037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013