0120121368
06-06-2012
Hoa Y. Ha, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Hoa Y. Ha,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120121368
Agency No. 4J493005811
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated December 19, 2011, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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
At the time of events giving rise to this complaint, Complainant worked as a Bulk Mail Technician, PS-07, at the Agency's Bulk Mail Entry Unit (BMEU) facility in Grand Rapids, MI, specifically assigned to the Kent Communications, Inc. (KCI) facility. On April 20, 2011, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination based on the conduct of her Supervisor (S1). The parties settled this complaint in a settlement agreement on June 13, 2011, which provided that:
(1) The parties both agree BMEU Manager will have a dialogue with KCI in efforts to improve the mailing schedules for presenting the mail.
(2) As it relates to the workload and assistance needed at KCI, [Complainant] will be provided relief or assistance when she calls and the workload justifies the need to meet specific cut off times. If no help is available, [Complainant] will be given an explanation, and she will be sent an e-mail telling her to hold the mail until the next day.
(3) When [Complainant] asks for leave through 3971 form, she will also give a copy to the supervisor, which the supervisor will return to her within three (3) days.
(4) Both parties confirm their commitment to treating all employees with dignity and respect.
On November 23, 2011, Complainant filed a formal complaint alleging breach of the settlement agreement and continued discrimination after June 13, 2011. The Agency defined her complaint as follows: Complainant alleged that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Vietnamese), age (54), and reprisal for prior protected EEO activity under Title VII and the ADEA when:
1. on June 13, 2011 her Manager was instructed to correct her timekeeping record (AWOL) for April 14, 2011;
2. on June 27, 2011 and July 18, 2011 S1 refused to allow her to return to her position working with KCI customer(s); and
3. on August 4, 2011 she was publicly berated for improperly performing her job duties.
On December 19, 2011, the Agency issued a final agency decision (FAD) dismissing the complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency dismissed the complaint on the grounds that Complainant was not subject to any adverse action, nor was she denied any entitlement in relation to a term, condition or privilege of employment. In addition, in its FAD, the Agency did not address claim 1 because this incident allegedly occurred before the June 13, 2011, settlement agreement that resolved Complainant's prior EEO complaint. Further, the Agency did not address any claims of a breach of the settlement agreement. The Agency stated that it would conduct a separate inquiry into allegations of such a breach.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred in refusing to address claim 1 and in dismissing claims 2 and 3 in its December 19, 2011, FAD. The Agency did not provide any response.
ANALYSIS AND FINDINGS
Preliminarily, we find that the Agency misframed the claims. Specifically, the Agency did not include in its FAD the multiple allegations in the complaint that maintained that S1 refused to provide Complainant with assistance for high-volume jobs, nor did it include the allegation that S1 attempted to solicit a letter from KCI. Upon review of the record, particularly the formal complaint dated November 23, 2011, we find that the claims are more properly framed as follows:
1. after the settlement of the initial EEO complaint, her Supervisor (S1) continued to deny Complainant assistance with high-volume jobs and to single her out for verbal abuse and humiliation;
2. S1 failed to correct the Complainant's timekeeping record, marked AWOL, for April 14, 2011;
3. S1 assigned Complainant difficult, high-volume jobs on multiple occasions, yet refused to provide assistance or to authorize overtime so Complainant could complete the jobs (including on or around February 2, 2011; April 12, 2011; and August 4, 2011);
4. on June 27, 2011 and July 18, 2011, S1 instructed her to remain at the BMEU, preventing Complainant from going to the KCI facility to perform her typical assignment, and instead sent Bulk Mail Clerks, who had less seniority than Complainant, to perform her duties at KCI;
5. S1 publicly berated Complainant on August 4, 2011, for improperly performing her job duties; and
6. S1 attempted to solicit a letter from KCI accusing Complainant of poorly or improperly performing job duties.
We will address Complainant's claims as properly framed above.
Claims 1 and 2
In its December 19, 2011, FAD, the Agency noted that in addition to alleging discrimination, Complainant also alleged breach of a previous EEO settlement agreement, dated June 13, 2011 (claim 1). The Agency argues that claim 1 should be removed from the current complaint. The FAD states: "This matter is being referred to the agency official responsible for the processing of such allegations in accordance with 29 C.F.R. � 1614.504. An inquiry will be conducted and [Complainant] will be issued a separate document regarding [Complainant's] concerns." Complainant has not contested the Agency's handling of the allegations of a breach of the settlement agreement in this way. The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). Accordingly, we decline to address claim 1 in this decision.
Further, the Agency declined to address the matter of the Complainant's PS Form 3971 for April 14, 2011, marked AWOL (claim 2), because this incident happened prior to the June 13, 2011, settlement agreement. In effect, the Agency argues that this settlement agreement bars Complainant from raising claim 2. The Agency, however, misframed this claim in its FAD. We find that the June 13, 2011, settlement agreement does not address the April 14, 2011, timekeeper record marked AWOL, nor does it contain a release covering this matter. Therefore, S1's refusal to correct the AWOL designation on the timekeeping record constituted a present harm or loss with respect to a term, condition, or privilege of employment for the purposes of the November 23, 2011, complaint. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). S1's refusal to correct the April 14, 2011, form should be addressed with the remaining claims on remand.
Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he 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, .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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
We find that the Agency improperly dismissed claims 3 through 6 in its December 19, 2011, FAD. The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether the complainant is an aggrieved employee; and (2) whether the complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for processing regardless of its judgment of the merits. See Odoski v. Dep't of Energy, EEOC Appeal No. 01901496 (April 16, 1990). To determine if a complainant's allegations are sufficient to state a claim, the trier of fact must consider all alleged harassing incidents and remarks in light most favorable to complainant. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
In this case, Complainant alleges that S1 refused to provide assistance or authorize overtime on several occasions when Complainant could not reasonably complete the required mail processing during her shift alone; that S1 removed Complaint from her job duties and replaced her with several less senior employees on two occasions; and that S1 publicly berated her. In addition, Complainant alleges that S1 attempted to solicit a letter from KCI accusing the Complainant of poorly or improperly performing her job duties.
A Complainant must show an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz, EEOC Request No. 05931049. "Terms, conditions, or privileges of employment" include, among other things, discipline, reasonable accommodation, assignments, overtime, and leave. Cobb, EEOC Request No. 05970077. Further, we note that Complainant's allegations of refusals of assistance, and reassignments sufficiently allege that she suffered a harm or loss with respect to a term, condition, or privilege of her employment. See, e.g., Johnson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120082809 (Jan. 6, 2011) (finding that Complainant stated a claim of discrimination when her supervisor assigned her more difficult assignments and refused to provide assistance when she requested it, "contrary to his treatment of the other" nurses); Pruneda v. U.S. Postal Serv., EEOC Appeal No. 0720050014 (June 4, 2007) (finding that Complainant successfully stated a claim of discrimination when the Agency reassigned her to a new shift at a different postal facility based on her disability). Accordingly, assuming that Complainant's allegations are true, we find that Complainant is an aggrieved employee and raises employment discrimination on a basis covered by EEO statutes. We find that the Agency erred in dismissing her complaint for failure to state a claim.
Harassment
In order to establish a claim of harassment, Complainant must show that she was subjected to conduct that was objectively severe or pervasive as to alter the conditions of her employment and create an abusive work environment. See Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2283 (1998); Harris v. Forklift Co., 510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Here, Complainant alleges that S1's public reprimands, multiple denials of Complainant's requests for assistance or overtime, reassignment of Complainant to the BMEU facility and refusal to correct Complainant's April 14, 2011, timekeeping record are part of continuing discriminatory conduct constituting harassment. We find that, taking the allegations as true and considering all of the circumstances, a reasonable person could find the work environment alleged by Complainant to be hostile or abusive and the multiple incidents of discriminatory conduct to be severe or pervasive. Complainant has therefore stated a claim of harassment.
CONCLUSION
Accordingly, the Agency's final decision dismissing claims 2 - 6 is MODIFIED. The claims are hereby remanded to the Agency for further processing in accordance with this decision and 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 (T0610)
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 (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
___6/6/12_______________
Date
2
0120121368
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121368