Carolyn S. Whitley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionOct 16, 2009
0120080645 (E.E.O.C. Oct. 16, 2009)

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