0120091714
06-17-2010
Charlotte Barlow-Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Charlotte Barlow-Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120091714
Agency No. 1G754000509
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 2, 2009, 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. Upon review, the Commission finds
that complainant's complaint was improperly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (African American), disability, and in reprisal for prior
protected EEO activity when:
1. On October 8, 2008, she was sexually harassed by her supervisor; and
2. On October 15, 2008, her supervisor shoved her into a rail.
The record reveals that Complainant was a Clerk at the Agency's North
Texas Processing and Distribution Center in Coppell, Texas when the
alleged discriminatory action took place. The record reflects that
Complainant requested pre-complaint processing on October 20, 2008,
and received a Notice of Right to File an Individual Complaint of
Discrimination (PS Form 2579-A) on January 6, 2009. Three days later,
on January 9, 2009, Complainant filed a formal complaint of discrimination
with the Agency.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The Agency found that Complainant failed
to demonstrate that she was an aggrieved employee who had suffered a
personal loss or harm with respect to a term, condition, or privilege
of employment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an Agency shall dismiss a complaint that fails to
state a claim. In determining whether a harassment complaint states a
claim in cases where a Complainant has not alleged disparate treatment
regarding a specific term, condition, or privilege of employment, the
Commission has repeatedly examined whether a Complainant's harassment
claims, when considered together and assumed to be true, were sufficient
to state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Upon review, the Commission finds that the Agency improperly dismissed
the complaint for failure to state a claim. Complainant alleged that
she was sexually harassed when her supervisor stated, "[t]o be eating
peanuts on the workroom floor you have to be giving up something."
Complainant further alleged that, one week later, the supervisor
grabbed her by the arms and pushed her into a steel rail while yelling
at her. Complainant maintained that she suffered injuries from the
assault. We find that the claims are sufficiently severe to state a
claim of harassment. See Sanford v. Department of Veterans Affairs,
EEOC Appeal No. 0120093442 (November 27, 2009) (finding that a claim
of a single act of touching was sufficiently severe to state a claim);
Nichols v. United States Postal Service, EEOC Appeal No. 0120092008
(June 25, 2009) (finding that physical assault was sufficient to support
a claim of a hostile work environment); Czubakowski v. United States
Postal Service, EEOC Appeal No. 0120065036 (May 15, 2007) (finding that
physical assault accompanied with defamatory language was sufficiently
severe to state a claim of hostile work environment).
We also find that Complainant has shown an injury or harm to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Accordingly, the agency's final decision dismissing
complainant's complaint is REVERSED. The complaint is hereby REMANDED
to the agency for further processing in accordance with this decision
and 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 (K0408)
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 19848, Washington,
D.C. 20036. 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
__6/17/10________________
Date
2
0120091714
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091714