EEOC Appeal No. 0120170850
04-07-2017
Matilde M. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Matilde M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120170850
Agency No. 4C-080-0115-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 1, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Post Office in Tuckerton, New Jersey.
On August 5, 2016, Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved, she was issued a Notice of Right to File a Formal Complaint. On November 14, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age (53), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when she was subjected to harassment. In support of her claim of harassment, Complainant alleged that the following events occurred:
1. On June 10, 2016, the Supervisor called her a beast;
2. On August 4, 2016, the Supervisor yelled at Complainant on the street; and
3. On October 3, 2016, the Postmaster called Complainant into the office with the Supervisor and tried to get her to settle her EEO Complaint.
The Agency dismissed complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that the events alleged herein did not show that Complainant was affected regarding a term, condition, or privilege of employment. Further, the Agency determined that the events alleged were not sufficient to state a claim of harassment. As such, the Agency dismissed the complaint as a whole.
Complainant appealed. On appeal, Complainant provided a timeline of events beginning in August 2015, when Complainant provided assistance to a coworker about her rights regarding lunch and breaks. She then indicated that the Supervisor arrived in April 2016, who was rumored to have been a problem carrier with the Agency and who had a personal connection to the Postmaster. She then asserted that this was the beginning of the daily harassment. She noted that she and the Supervisor had open arguments on a daily basis on the workroom floor. On June 10, 2016, Complainant learned that parcels were not delivered on her day off. She asked the Supervisor about why this was not delivered and said, "it was too heavy?" The Supervisor replied, "Because you're a beast." Complainant took this to mean that she is big and fat. On June 20, 2016, she had told the Supervisor that she thought she could finish her assignment in eight hours when he handed her the keys and told her that she is "getting walked with [a co-worker]."
From June through August, Complainant asserted that management continued to treat her poorly and it was causing her to have anxiety attacks and to feel isolated. Then, on August 4, 2016, Complainant asserted that she was delivering a package when she saw the Supervisor. He approached Complainant's truck from the driver's side and banged loudly on the side and started to scream at her, "[Complainant], you're not allowed to drive with the door open." Complainant contested this assertion and the two of them engaged in an argument. Complainant asserted that since this event, she cries all the time and her nerves are shot. She noted that other employees are given more help and time without issues. She also noted that others told her, "why don't [you] want to finish [your] postal career in peace?" On November 12, 2016, Complainant asserted that the Supervisor provided a male co-worker help while she was told she had to work overtime even if she was not on the overtime list. On November 22, 2016, Complainant asserted that another male employee provided with help and every time he asked, he would get the help he needed. She noted that she never gets help and it told to leave the mail. The next day, Complainant tried to raise the issue of assignments with management and she is told not to worry about other routes. Complainant argued that she has been subjected to harassment and the Agency has failed to resolve the situation.
The Agency responded on appeal requesting that the Commission affirm its decision dismissing the complaint.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, .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 (April 21, 1994). If Complainant cannot establish that she is aggrieved, the Agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Herein, both in her complaint and on appeal, Complainant alleged, from June 2016 to December 2016, that management called her names, yelled at her, threatened her while on her route, dissuaded from pursuing her EEO complaint, denied assistance, and forced her to work overtime. We find that Complainant's allegations are sufficient to state a claim of a hostile work environment. As such, we find that the Agency's dismissal pursuant to 29 C.F.R. � 1614.107(a)(1) was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter in accordance with the ORDER below.
ORDER (E1016)
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 was issued. 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 was issued, 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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 7, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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