0120100321
06-24-2010
Carrie A. Salvatore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Carrie A. Salvatore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120100321
Agency No. 4B-018-0045-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 25, 2009, dismissing her formal 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. For the following reasons, the Agency's decision is AFFIRMED in part and REVERSED in part.
BACKGROUND
In her formal complaint, Complainant claimed that the Agency subjected her to discrimination on the bases of sex (female), disability (epilepsy) and in reprisal for prior protected EEO activity (arising under Title VII and the Rehabilitation Act) when:
1. on April 27, 2009, she was denied a reasonable accommodation when scheduled to report at 5:30 a.m.;
2. on April 27, 2009, the Postmaster became angry and hostile towards her when she provided a doctor's note with her work restrictions;
3. on May 15, 2009, the Postmaster began yelling at her when she asked about working more hours;
4. on June 9, 2009, the Postmaster implemented a color code system to track sorting mistakes, and she was the only clerk working to mark the mail that day and was the only clerk to be reprimanded for forgetting to mark the mail;
5. on June 12, 2009, the Postmaster only checked for errors the mail that she sorted;
6. on June 13, 2009, the Postmaster posted a chart for mistakes with everyone's name and color; and
7. on June 29, 2009, she spoke to the Postmaster about a piece of mail that was returned to sender while she was on vacation.
The Agency dismissed claims (1) - (3) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact and claims (2) - (7) pursuant to 29 C.F.R. � 1614.107(a)(1) for failing to state a claim.
ANALYSIS AND FINDINGS
Claims 1 and 2
The Agency erred in dismissing claims (1) and (2) on the grounds of untimely EEO Counselor contact. The record is insufficiently developed for us to be able to determine whether Complainant had requested reasonable accommodation prior to being scheduled for a 5:30 am shift. Similarly, the record is insufficiently developed for us to be able to determine if the Agency had ever addressed her request if it was made. For purposes of this decision only, we will assume that she had made a request for reasonable accommodation which had not been addressed and that after concluding that her request remained outstanding when she was scheduled to work alone, she took further steps to remind the Postmaster of her medical restrictions. Thus the two claims are intertwined, and it is the Commission's position that the Agency's failure to address a request for reasonable accommodation constitutes a recurring violation that repeats each day that the accommodation is not provided. See Henery v. Department of Navy, EEOC Appeal Nos. 01A22792 and 01A22794 (April 2, 2003). Thus, absent evidence to the contrary, claims (1) and (2) are really one claim - concerning the denial of reasonable accommodation, - which is a recurring violation, and should not have been dismissed for untimely EEO Counselor contact.
Claims (3) - (7)
The Commission finds that claims (3) - (7) are the incidents giving rise to Complainant's claim that the Postmaster subjected her to hostile work environment harassment. To determine whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). The Supreme Court emphasized in Faragher v. City of Boca Raton, that "'simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" 524 U.S. 775, 788 (1998). The Court noted that such conduct must be both objectively and subjectively offensive, such that a reasonable person would find it to be hostile or abusive, and that the victim perceived the environment to be hostile and abusive. Id. at 787.
Upon review, we find that, as a matter of law, the alleged incidents are both insufficiently severe and insufficiently pervasive to state a claim of actionable harassment. There is simply nothing objectively or subjectively offensive about the Postmaster introducing a color coding system to track mistakes and attempting to improve the quality of service Agency employees provide. Finally, while it is regrettable that Complainant was yelled at on May 15, 2009, under the facts alleged herein, it is an isolated incident and thus insufficient to render Complainant aggrieved.
For the reasons set forth above, the Commission AFFIRMS the Agency's dismissal of Complainant's claim of harassment comprised of claims (3) - (7). We REVERSE the dismissal of claims (1) and (2) and REMAND them for further processing consistent with the ORDER below.
ORDER (E0408)
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
June 24, 2010
__________________
Date
2
0120100321
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120100321