0120073813
11-29-2007
Sandra L. Stephens, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandra L. Stephens,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073813
Agency No. 1G-721-0029-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated August 3, 2007, 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.
On July 25, 2007, complainant filed a formal EEO complaint. Therein,
she alleged that she was subjected to discrimination on the bases of
race, sex, color, disability, age, and in reprisal for prior protected
EEO activity.
In its final decision dated August 3, 2007, the agency determined that
complainant's complaint was comprised of the following claims:
1) [complainant has] been subjected to a contin[uous] hostile
work environment; and
2) [complainant was] not accommodated for a known disability.
The agency dismissed complainant's complaint. The agency dismissed
claim (1) for failure to state a claim. The agency stated that the
alleged incidents were not sufficiently severe or pervasive to state an
actionable claim of harassment.
The agency dismissed claim (2) on the grounds that this matter was not
raised with an EEO Counselor and is not like or related to a matter that
has been brought to the attention of an EEO Counselor.1 Specifically,
the agency stated that "[c]omplainant did not raise this issue during
counseling and she was not provided counseling on this issue...Only
in the formal complaint did the complainant raise this issue; for
the very first time." In addition, the agency dismissed claim (2)
on the alternate grounds for failure to state a claim. Specifically,
the agency stated that claim (2) "is too vague to state a claim under
the EEOC regulations. Not only did the complainant fail to provide a
specific date of the alleged discrimination; the complainant also failed
to identify the 'failure to accommodate' discriminatory action."
On appeal, complainant asserts that her hostile work environment claim
is related to a previously filed complaint, which the agency accepted
for investigation. Specifically, complainant, through her attorney,
states that "[complainant] currently has an EEOC claim against the
[agency] that has been accepted...for investigation. ([Agency Case
No.] 1G-721-0007-07 filed January 24, 2007). [Complainant] asserts that
the current actions in the dismissed claim which are the object of this
appeal are in fact part of the same continuing hostile work environment
of her first EEOC claim...The same individuals named by [complainant]
in her first EEOC claim (EEOC No. 490-2007-00135X) as being either
involved with or facilitating the discriminatory behavior existing in
her work environment are named and involved in this claim...the prior
EEOC complaint is still [in] discovery."2
The Commission finds that the agency improperly dismissed claim (1).
Upon review of the record, we find that complainant is alleging that she
is being subjected to an ongoing hostile work environment. Complainant
alleges that she was the only employee in her section not to receive an
award (gift certificate), a co-worker accused her of hitting her with
a birdcage on the workroom floor, and management accused her of taking
pictures of a co-worker and threatened to call the Postal Inspectors.
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).
We find that the alleged incidents are sufficiently severe or pervasive
to state an actionable claim of harassment.
The Commission finds that the agency properly dismissed claim (2) for
failing to raise this matter with an EEO Counselor and not being like or
related to a matter that was raised with an EEO Counselor. The regulation
set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that
an agency shall dismiss a complaint which raises a matter that has not
been brought to the attention of an EEO Counselor, and is not like or
related to a matter on which the complainant has received counseling.
A review of the record reflects that complainant first raised her claim of
failure to accommodate her alleged disability in her formal EEO complaint.
The record is devoid of evidence that complainant previously raised this
matter with an EEO Counselor. In addition, complainant has not shown
that this matter is like or related to the other matters she raised
during counseling.
Accordingly, we AFFIRM the agency's final decision dismissing claim
(2);3 however, we REVERSE the agency's final decision dismissing claim
(1) and we REMAND this matter to the agency for further processing in
accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims (claim (1)) 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 29, 2007
Date
1 The agency in its final decision advised complainant that she must
contact an EEO Counselor no later than 15 days from receipt of its final
decision if she desired counseling on claim (2).
2 The Commission notes that 29 C.F.R. � 1614.106(d) provides, in relevant
part, that "[a]fter requesting a hearing, a complainant may file a motion
with the administrative judge to amend a complaint to include issues or
claims like or related to those raised in the complaint."
3 Because we AFFIRM the agency's dismissal of claim (2) for the reasons
stated herein, we need not address the agency's alternate grounds of
dismissal.
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0120073813
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073813