0120182502
09-18-2018
Bernetta B,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bernetta B,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120182502
Agency No. 1J461002718
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 11, 2018, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, PS-6, at the Agency's Indianapolis Mail Processing Annex facility in Indianapolis, Indiana. On May 22, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black), national origin (Jamaican), sex (female), color (Black), disability (shoulder), and reprisal for prior protected EEO activity when, on February 9, 2018, the Manager of Distribution Operations yelled at her, using profane language and racial slurs, including calling her a "black bitch," and indicated he would deny her access to detail and training opportunities.
The EEO Counselor's report indicates that Complainant alleged that, on February 9, 2018, management used racial slurs and profanity towards Complainant, while yelling, and that Complainant was denied training in other areas. The Manager of Distribution Operations acknowledged that he engaged in "a shouting match" with Complainant on February 9, 2018 but denied cursing or calling Complainant any names. He also indicated Complainant was on limited duty restrictions and was not allowed to be trained on other operations, due to those restrictions.
On June 11, 2018, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. In so doing, the Agency found Complainant alleged discrimination based on color (black), national origin (Jamaica), sex (female), disability (shoulder), and retaliation for prior EEO activity when, on February 9, 2018, the manager cursed, yelled at Complainant, and called her a derogatory name. The Agency noted that that Complainant did not relate any other instance in her complaint and that she did not relate a loss of a term, condition, or privilege of employment nor did she relate receiving any adverse action. The Agency also found that, even if true, the alleged actions are neither sufficiently severe nor pervasive enough to create a discriminatory hostile or abusive working environment. Thus, the Agency found Complainant was not "aggrieved" as defined in the regulations and, therefore, dismissed her claim.
The instant appeal followed. On appeal, Complainant alleges additional occurrences of conflict with the Manager of Distribution Operations. On November 29, 2017, she was made aware that her schedule was changed such that it conflicted with her work restrictions; on December 29, 2017, she requested to be trained as an expeditor and the Manager of Distribution Operations "tore up" her request form and told her she would not be trained as an expeditor as she is unable to load or unload the trucks. She further describes the events on February 9, 2018, indicating that, on that date, she was working on the dock with another co-worker who was dispatching trucks and, when Complainant attempted to dispatch a truck, the co-worker called Complainant a "bitch" and told Complainant to not dispatch trucks without having been told to do so; the Manager of Distribution shouted expletives and profanity at Complainant, including addressing her as a "black bitch" while telling her that she should not dispatch from the dock.
ANALYSIS AND FINDINGS
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, .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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
With respect to Complainant's allegation of harassment, we note that in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. However, we have found that under certain circumstances a single or limited number of epithets or slurs may constitute harassment under Title VII. See Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996) (in some circumstances, the single use of a racial epithet or slur that "dredge[s] up the entire history of racial discrimination in this country" may be enough to constitute a hostile work environment); Yakubi v. Department of the Army, EEOC Request No. 05920778 (January 4, 1993) (single incident of verbal abuse and negative comments regarding the Japanese people sufficient to constitute race and national origin discrimination). In the instant case, we find the Complainant's allegation that the Manager of Distribution Operations called her a "black bitch" is sufficient to state a claim of harassment.
The Agency did not address the Complainant's allegation that the Agency discriminated against her when the Manager of Distribution Operations indicated he was denying Complainant training opportunities, including those related to becoming an expeditor. We find that this is a valid claim. As noted above, this allegation was included in both the EEO counselor's report and Complainant's formal complaint.
Upon review of the record, we find that Complainants allegations are sufficient to establish that she is an "aggrieved employee" within the meaning of the regulations. Therefore, we find that the Agency's dismissal of the complaint 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 for further processing in accordance with the ORDER below.
ORDER (E0618)
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.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
September 18, 2018
__________________
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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