0120121251
05-18-2012
Sylvia Garcia, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Sylvia Garcia,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120121251
Agency No. 4F-926-0266-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's January 11, 2012 decision, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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. We REVERSE the Agency's decision and REMAND the complaint to the Agency for further processing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Upland Post Office facility in Upland, California. Complainant had filed two prior complaints against the Agency and participated in EEO activity involving two other coworkers.
On December 27, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), sex (pregnancy), disability (pregnancy), and reprisal for her prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On or about August 11, 2011 and for a long period of time throughout Complainant's pregnancy, four named supervisors embarrassed and belittled Complainant in front of her peers at work by engaging in gossip and allowing employees to engage in gossip regarding Complainant's pregnancy and the ethnicity of Complainant's unborn child; and
2. Management engaged in ongoing retaliatory actions against Complainant by targeting her, changing the working conditions at the Upland Post Office, and subjecting Complainant to constant scrutiny, tension, degradation and humiliation.
The record includes the EEO ADR Specialist's Inquiry Report which specified the basis for her retaliation claim as being the two complaints filed by Complainant and, in addition, her association with the EEO activity of two coworkers.
In her complaint, Complainant seeks compensatory damages and relief from the "intentional emotional distress" and "embarrassment" of the alleged retaliation and harassment which she attributes to management's attitude towards Complainant.1 We note that the record also shows that Complainant filed a grievance on these matters.
The Agency dismissed the complaint on three grounds. First, the Agency dismissed the disability allegation reasoning that pregnancy is a transitory condition and is not considered a disability under the Rehabilitation Act. In addition, the Agency dismissed because it concluded that Complainant's claim that she was "subjected to constant scrutiny, tension, humiliation and degradation" was too vague and lacked the required specificity.
The Agency then dismissed the entire complaint reasoning that, unless Complainant "suffered a direct and personal deprivation at the hands of the Agency, [Complainant] cannot properly be considered a 'person aggrieved'. The Agency concluded that Complainant did not claim any adverse action or any personal loss related to a term, condition or privilege of employment. Consequently, the Agency concluded that Complainant lacked standing to file a charge based on alleged remarks or defamation.
The instant appeal followed. On appeal, Complainant states that the Agency has tried to put a spin on the Complainant's issues. She clarified that she was challenging the Agency's failure to respond appropriately to her allegations of harassment, based on her sex, disability and retaliation. She asserts that the Agency erred when it failed to investigate her cognizable claims alleging a pattern of harassment. She asks that her allegations be investigated.
ANALYSIS AND FINDINGS
As noted above, the record shows that Complainant filed a grievance on this matter. Therefore, we note, for the record, that postal employees are not subject to the election provisions of 29 C.F.R. 1614.301 because they are not employees in an agency subject to the provisions of 5 U.S.C. 7121(d). Also see 5 U.S.C. 2105(e). Consequently, Complainant was entitled to raise her allegations of ongoing harassment and retaliation in both the negotiated grievance process and the EEO complaint process without having to make an election between the two processes.
Next, while the Agency has characterized the complaint as too vague and lacking sufficient specificity to state a claim, as we have already noted, a more correct characterization of the complaint is that Complainant named four supervisors as engaging in ongoing sex-based and disability discrimination and retaliation; and that management caused Complainant the harm when it did not take her allegations of harassment and retaliation seriously by taking prompt and effective corrective and preventative action. See Olvera v. United States Postal Service, EEOC Appeal 0120120554 (April 18, 2012) (reversing dismissal where Postmaster did nothing to correct harassment or prevent it from happening in the future). Here, Complainant attempts to set out a pattern of retaliatory and sex/disability based harassment. The record clearly reveals that Complainant checked on her complaint that she was the victim of discrimination because of sex, disability and retaliation and she identified the alleged responsible officials. Therefore, we do not find that the instant complaint fails to state a claim and the Agency erred in dismissing the complaint on this basis.
Further, Complainant claims that the Agency changed the terms and conditions of employment as an act of retaliation and that she was subjected to heightened scrutiny because of her sex (female), sex (pregnancy), disability, and retaliation. Assuming the allegations are true, we find that such a pattern or behavior might dissuade a reasonable person in Complainant's position from pursuing a charge of discrimination or assisting in the EEO activities of others. Complainant has shown 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).
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and REMAND the entire complaint to the Agency for further processing.
ORDER
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 tends 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
May 18, 2012
__________________
Date
1 The Agency characterized the complaint differently, indicating that Complainant was alleging "discrimination based on sex (Female-Pregnancy) and retaliation (prior EEO activity) when on or about August 11, 2011 supervisors engaged and allowed coworkers to engage in gossip and subjected Complainant to constant scrutiny, tension, humiliation and degradation.
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0120121251
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121251