0120142380
10-23-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
Agency.
Appeal No. 0120142380
Agency No. 4E-570-0017-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 12, 2014, 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., 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.
BACKGROUND
During the period at issue, Complainant worked as a Sales and Service Associate at the Agency's Pioneer Station, Billings Montana.
On February 20, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On April 10, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, and age when:
1. During December 2013, she was not always given help to work the window in the morning, which aggravated her ankle injury;
2. On February 7, 2014, her supervisor told her manager that she was too slow in the box section and imitated how she walk;
3. On February 10, 2014, her supervisor told the district manager that the statement Complainant had made to him about the number of clerks working parcels was not true; and
4. On February 11, 2014, her supervisor yelled at her when she requested help at the window.
On May 12, 2014, the Agency issued a final decision dismissing the formal complaint pursuant to 29 C.F.R.� � 1614.107(a) (1) and (2) on the grounds of untimely EEO Counselor contact and for failure to state a claim. Specifically, the Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact by finding that the initial EEO counseling request was made at least 51 days after the alleged incident.
The Agency also dismissed the formal complaint in its entirety, for failure to state a claim. The Agency found that the actions complained of, even if true, are neither sufficiently severe nor pervasive enough to create a discriminatory hostile or abusive working environment.
The instant appeal followed
ANALYSIS AND FINDINGS
Failure to State a Claim: Claims 1 - 4
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment claims for failure to state a claim. A fair reading of her formal complaint, Complainant claimed that she is subjected to a series of related incidents of harassment from December 2013 through present. Complainant alleged that management created a hostile work environment by refusing to provide her with assistance at the retail counter. She alleged her supervisor refused to give assistance when requested, yelled at her, humiliated her and mocked her due to her physical disability. Complainant alleged that the Agency was aware of her disability and her chronic foot condition was exacerbated due her supervisor's actions. These matters, taken together, state an actionable claim of harassment. By alleging a pattern of harassment, Complainant has started a cognizable claim under the EEOC Regulations. See Cervantes v. U.S.P.S. EEOC Request No.05930303 (November 12, 1993).
Untimely EEO Counselor Contact: Claim 1
The Agency also improperly dismissed claim 1 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on February 20, 2014. The Commission has held that because the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the Complainant knew or should have known were actionable at the time of their occurrence. EEOC Compliance Manuel, Section 2, Threshold Issues at 2 75 (revised July 21, 20005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S.101, 117 (2002)).
The record reflects that the various incidents comprising Complainant's harassment/hostile work environment claim occurred within 45-day time period preceding Complainant's February 20, 2014 EEO Counselor contact, as reflected in our above discussion of claims 2 - 4. Because a fair reading of the record reflects that the matter identified in claim 1 is part of that harassment claim, we find that the Agency improperly dismissed this claim on the grounds of untimely EEO Counselor contact.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter 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
October 23, 2014
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
__________________
Date
______________________________
Compliance and Control Division
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0120142380
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120142380