0120080645
10-16-2009
Carolyn S. Whitley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Carolyn S. Whitley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120080645
Agency No. 4G-752-0278-06
DECISION
On November 20, 2007, complainant filed a timely appeal with this
Commission after the agency failed to timely respond to his notice that
it had not complied with its final agency order dated June 18, 2007.
See 29 C.F.R. � 1614.504(a); and 29 C.F.R. � 1614.405. The appeal is
deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405 (b).
ISSUE PRESENTED
Whether the agency failed to comply with its final order when it allowed
a male custodian to enter the women's restroom at the Northwest Station
in Plano, Texas.
BACKGROUND
The record reveals that in 2006, complainant worked as a rural carrier at
the agency's Northwest Station in Plano. On July 14, 2006, complainant
filed an EEO complaint in which she alleged that she was subjected to
harassment on the basis of sex (female) and in reprisal for prior EEO
activity when beginning in February 2006, the agency failed to take
corrective action to prevent a male custodian (C) from coming into the
women's restroom while she was in the restroom.
After a hearing, the AJ issued a decision on April 23, 2007, in which
he found that complainant was subjected to harassment on the basis on
sex when on several occasions, C worked in the women's restroom while
complainant and other females were in the restroom and did not want C
to be in the restroom. The AJ further determined that the agency was
liable for the harassment because management failed to effectively
address C's conduct. The AJ ordered the agency to cease and desist
discriminating against complainant; prevent C from performing custodial
duties in the women's restrooms at Northwest Station; pay complainant
$2,000.00 in compensatory damages; and, post a notice of the finding of
discrimination at the Northwest Station. In a final order dated June 18,
2007, the agency fully adopted the AJ's findings and ordered remedies.
In a letter dated September 27, 2007, complainant notified the agency
that it had not complied with its final order. After the agency did not
respond to complainant within 35 days of the notice of non-compliance,
complainant appealed the matter to the Commission, in accordance with 29
C.F.R. � 1614.504(b). On appeal to the Commission, complainant contends
that the agency has posted the notice of discrimination but has not paid
her the ordered compensatory damages. Complainant further contends that
on November 15, 2007, the agency allowed C to perform custodial duties
in the women's restrooms at Northwest Station, which is a continuation
of the discriminatory practices of the agency.
In response, the agency maintains that it paid complainant $2,000.00 in
compensatory damages in December 2007. The agency further maintains that
complainant no longer works at the Northwest Station and therefore does
not work in the presence of C or anyone who she previously alleged to
have subjected her to harassment. The agency further contends that on
an unknown date, the women's restroom was shut down and the Maintenance
Manager asked C to assist another custodian with cleaning the floors
in the women's restroom. The agency maintains that it has informed
the Maintenance Manager, the new Northwest Station Manager, the Plano
Postmaster, and C that there can be no exceptions to the order that C not
perform custodian duties in the women's restrooms at Northwest Station.
The agency further contends that it is concerned that the AJ's order
does not allow the agency to exercise reasonable discretion to deal with
"potential emergency situations" arising in the women's restroom when
C may be the only custodian on duty at the facility.
ANALYSIS
Under 29 C.F.R. � 1614.504, if a complainant believes that the agency has
failed to comply with the terms of a final action, she shall notify the
EEO Director in writing of the alleged noncompliance within thirty days
of when she knew or should have known of the alleged noncompliance. The
regulation provides that the agency shall resolve the matter and
respond to complainant in writing. If the agency does not respond to the
complainant or she is not satisfied with the agency's attempt to resolve
the matter, she may appeal to the Commission for a determination as to
whether the agency has complied with the final action.
In this case, the agency fully adopted the AJ's order that the agency
cease and desist discriminating against complainant; prevent C from
performing custodial duties in the women's restrooms at Northwest
Station; pay complainant $2,000.00 in compensatory damages; and, post
a notice of the finding of discrimination at the Northwest Station.
On appeal, complainant acknowledges that the agency has posted the notice
of discrimination. Additionally, the agency has provided a copy of a
check for $2,000.00 in compensatory damages delivered to complainant via
certified mail on December 13, 2007. However, the agency acknowledges
that after the issuance of its final order, C cleaned the floors in the
Northwest Station women's restroom because a manager asked him to do so.
We find that this action contravened the agency's final order, which
forbids C from performing any custodian duties in the women's restrooms at
Northwest Station. Although the agency notes that complainant no longer
works at the Northwest Station, we find that the order precludes C from
working in the Northwest Station women's restroom, even if complainant
no longer works at Northwest Station. The agency contends that the order
does not permit C to respond to emergency situations that may arise in
the women's restroom while he is the only custodian on duty. We note,
however, that the agency had the option of rejecting the AJ's ordered
remedies and filing an appeal with the Commission, but instead chose to
fully adopt the remedies as reflected in the AJ's decision. Consequently,
we find that the agency has not fully complied with its final order.
CONCLUSION
We find that the agency did not comply with its final order when
it allowed C to enter the women's restroom at Northwest Station.
Consequently, the Commission REMANDS this matter to the agency to take
corrective action in accordance with this decision and the ORDER below.
ORDER
To the extent that it has not already done so, the agency is ordered
to ensure that C does not perform duties in the women's restrooms at
Northwest Station in Plano, Texas. Within 30 days after the date this
decision become final, the agency shall provide documentation for the
record reflecting that it has taken steps to ensure compliance by all
responsible management officials at Northwest Station and C. A copy
of the agency's documentation shall be provided to complainant and the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (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
______10/16/09____________
Date
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0120080645
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080645