0120083470
12-18-2008
Terry Price, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terry Price,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083470
Agency No. 1F957003708
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 30, 2008, 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. In its final decision,
the agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
and (2) for failure to state a claim and untimely EEO Counselor contact.
It is from this decision that complainant now appeals.
In a complaint dated June 12, 2008, complainant alleged that she was
subjected to hostile workplace discrimination on the bases of sex
(female), disability (not specified), age (54), and reprisal for prior
protected EEO activity under the Rehabilitation Act and Title VII when: 1)
the Sr. Manager, Distribution Operations (MDO) assigned her an inordinate
amount of duties; 2) in September 2007, the Sr. MDO instructed complainant
to return to her other duties, which was contradictory to an agreement
complainant had previously made with the Plant Manger; 3) during a week
of training in October 2007, complainant was not given the chance to
eat or take a break, and she stayed 2 or 3 hours after her shift to
complete her administrative duties; 4) after she suffered a stroke in
November 2007, the Sr. MDO was heard saying that complainant would do
her job even if it killed her; and when complainant returned to work
the Sr. MDO was demanding and insensitive; 5) on January 8, 2008, she
was given an investigative interview; 6) in April 2008, she received a
letter from the FMLA Coordinator which had been prompted by the Sr. MDO;
7) she received a letter dated April 28, 2008, which threatened to vacate
complainant's position and fill it with someone else; 8) the agency
did not send all correspondence through complainant's consultant; 9)
on May 19, 2008, she was given a Fitness for Duty (FFD) exam; and 10)
on June 10, 2008, she received a letter indicating that a Psychiatric
FFD exam had been scheduled. The agency dismissed allegations 1, 4, 5,
6, 7, 8, 9 and 10 for failure to state a claim and allegations 2, 3, 4,
and 5 for untimely EEO Counselor contact.
As an initial matter, the Commission notes that the agency dismissed
a portion of the complaint for failure to contact an EEO counselor in
a timely manner. A fair reading of the complaint and related materials
reveals complainant was alleging a pattern of discriminatory harassment,
mainly by the Sr. MDO, involving incidents which occurred in 2007
and 2008. The United States Supreme Court has held that a complainant
alleging a hostile work environment will not be time-barred if all acts
constituting the claim are part of the same unlawful practice and at
least one act falls within the filing period. See Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The record in the instant
case reveals that complainant raised incidents of harassment (allegations
6, 7, 9 and 10) that occurred less than 45 days from her initial contact
with an EEO counselor on April 29, 2008, and that were related to her
allegations involving earlier incidents. As such, her claim of hostile
work environment harassment was timely raised and her complaint was
improperly dismissed on this ground.
With regard to the dismissal for failure to state a claim concerning
allegations 9 and 10, we find that being required to undergo a
fitness-for-duty examination concerns a term, condition, or privilege of
complainant's employment. Therefore, allegations 9 and 10 state a claim
of discrimination under the regulations. See Browder v. USPS, EEOC Appeal
No. 01962784 (August 27, 1996), request for reconsideration denied,
EEOC Request No. 05960865 (December 6, 1996). Thus, the Commission
finds that allegations 9 and 10, even standing alone, were improperly
dismissed for failure to state a claim.
Moreover, in determining whether a harassment complaint states a claim,
the Commission will examine whether a complainant's allegations,
when considered together and assumed to be true, are sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999). Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a cause of action if the discriminatory conduct was so severe
or pervasive that it created a work environment abusive to complainant
because of her race, gender, religion, national origin or disability.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November
22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993)) request for reconsideration denied EEOC Request No. 05970995
(May 20, 1999).
In this case, contrary to the agency's position, the totality of the
actions complained of in allegations 1 through 10, when taken together
and assumed to be true, allege facts sufficiently frequent and/or severe
to state a claim of a discriminatory hostile work environment. Rideout
v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995)
(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)).
Therefore, we reverse the agency's dismissal of the complaint under a
claim of a discriminatory hostile work environment.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed and the complaint is remanded to the agency for
processing in accordance with the following Order.
ORDER (E0408)
The agency is ordered to process the remanded complaint in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded complaint 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 (K0408)
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 (M0408)
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 (R0408)
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 (Z1008)
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 18, 2008
__________________
Date
2
0120083470
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036