Charlotte D. Denny, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01980391 (E.E.O.C. Apr. 10, 2000)

01980391

04-10-2000

Charlotte D. Denny, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Charlotte D. Denny v. United States Postal Service

01980391

April 10, 2000

Charlotte D. Denny, )

Complainant, )

)

v. ) Appeal No. 01980391

) Agency No. 1K-222-0044-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq.<1> The final agency decision was issued

on September 12, 1997. The appeal was postmarked October 11, 1997.

Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),

and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. �1614.405).

ISSUES PRESENTED

1. The first issue on appeal is whether the agency properly dismissed

claims 1-9 of the complaint on the grounds of untimely EEO contact.

2. The second issue on appeal is whether the agency properly dismissed

claims 10-11 of the complaint on the grounds of failure to state a claim.

BACKGROUND

Complainant initiated contact with an EEO Counselor on June 21, 1997.

On August 11, 1997, complainant filed a formal EEO complaint wherein she

claimed that she was subjected to discriminatory harassment on the bases

of her sex (female) and in reprisal for her previous EEO activity when:

1. On February 18, 1995, double standards were used when detailing

personnel to different days off and tour changes.

2. On June 6, 1995, she was questioned if a found earring belonged to

her in an attempt to connect her and a coworker as working in the same

area at the same time.

3. On June 28, 1995, and for several days, coworkers spoke foul and

coarse language referring to women in a sexual nature.

4. On July 24, 1995, she became aware of rumors asserting that she

dropped a grievance because her husband would find out about it.

5. On March 29, 1996, the computer used by complainant had wallpaper

of a sexual nature - naked women.

6. During March 1996, the office bulletin board displayed naked women

on postcards.

7. On April 22, 1996, complainant discovered an offensive paper posted

on the bulletin board concerning women and dogs.

8. On October 9, 1996, complainant was denied a transfer to another

tour even though she provided Family and Medical Leave Act documentation.

9. On February 28, 1997, complainant's supervisor made false statements

to the Manager, Distribution Operations, concerning her job performance

as to a work order.

10. During June 1997, complainant discovered an obscenely drawn picture

displayed on a computer screen containing messages and a person sitting

on a toilet.

11. On June 11, 1997, her supervisor made false statements when she

was accused of sleeping on-the-clock, and she subsequently received a

pre-disciplinary interview.

In its final decision, the agency dismissed claims 1-9 of the complaint

on the grounds that complainant failed to contact an EEO Counselor in

a timely manner. The agency noted that complainant initiated contact

with an EEO Counselor on June 21, 1997, which was more than 45 days after

the date of the alleged acts of discrimination set forth in claims 1-9.

The agency dismissed claims 10-11 on the grounds of failure to state

a claim. According to the agency, complainant failed to show that she

suffered a personal loss or harm with regard to a term, condition, or

privilege of her employment as a result of the alleged adverse management

actions set forth in claims 10-11. The agency noted that complainant

erased the obscene picture displayed on the computer screen rather than

report it. The agency further stated that a pre-disciplinary interview

is viewed as a discussion and not a disciplinary action.

On appeal, complainant claims that the actions at issue constitute sexual

harassment against her over a four year period. Complainant states

that in her work facility there have been numerous offensive materials

on the bulletin boards, computer screens, and in tools and parts cabinets.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. �1614.107(a)(1)) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. 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. 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter referred to as 29

C.F.R. �1614.103); �1614.106(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 22, 1994).

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. The Court explained that an "objectively hostile or abusive

work environment [is created when] a reasonable person would find [it]

hostile or abusive:" and the complainant subjectively perceives it

as such. Harris, supra at 21-22. Thus, not all claims of harassment

are actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

a claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe or

pervasive to alter the conditions of the complainant's employment.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997).

In the present complaint, complainant claimed that she was subjected over

a four year period to discriminatory harassment based on her sex and in

reprisal for her previous EEO activity. Complainant described eleven

incidents of the alleged harassment in her complaint. Viewing claims

10-11 in conjunction with claims 1-9 in the light most favorable to

complainant, we find that complainant stated a cognizable claim under

the EEOC Regulations. See Cervantes v. United States Postal Service,

EEOC Request No. 05930303 (November 12, 1993). Accordingly, the agency's

decision to dismiss claims 10-11 for failure to state a claim was improper

and is hereby REVERSED. Claims 10-11 are hereby REMANDED for further

processing in accordance with the ORDER below.

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

cited as 29 C.F.R. � 1614.105(a)(1)) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain claims within a complaint when

the complainant alleged a continuing violation; that is, a series of

related discriminatory acts, one of which fell within the time period

for contacting an EEO Counselor. See Reid v. Department of Commerce,

EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States

Postal Service, EEOC Request No. 05901150 (December 28, 1990).

A determination of whether a series of discrete acts constitutes a

continuing violation depends on the interrelatedness of the past and

present acts. Berry v. Board of Supervisors of Louisiana State Univ.,

715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).

It is necessary to determine whether the acts are interrelated by a

common nexus or theme. See Vissing v. Nuclear Regulatory Commission, EEOC

Request No. 05890308 (June 13, 1989); Verkennes v. Department of Defense,

EEOC Request No. 05900700 (September 21, 1990); Maldonado v. Department of

the Interior, EEOC Request No. 05900937 (October 31, 1990). Should such

a nexus exist, complainant will have established a continuing violation

and the agency would be obligated to "overlook the untimeliness of the

complaint with respect to some of the acts" challenged by complainant.

Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).

With regard to claims 1-9, we note that the alleged incidents occurred

in a period ranging from February 1995 - February 1997. As indicated

above, we find that complainant is raising a claim of harassment,

which includes those incidents described in claims (10) and (11),

occurring in June 1997. Complainant initiated contact with an EEO

Counselor with regard to the instant complaint on June 21, 1997.

It is apparent that complainant claims that the harassment inflicted

on her constituted a continuing violation. The majority of the cited

incidents of alleged harassment involve actions of a sexual nature;

the incidents are recurring; and frequently involve her supervisor.

Upon review, we find that complainant has established a continuing

violation and, therefore, complainant's EEO contact on June 21, 1997,

was timely with regard to all her claims of harassment. Accordingly, the

agency's decision to dismiss claims 1-9 of the complaint on the grounds

of untimely EEO contact is REVERSED. Claims 1-9 are hereby REMANDED to

the agency for further processing in accordance with the Order below.

CONCLUSION

The agency's dismissal of the subject complaint is hereby REVERSED.

The complaint is hereby REMANDED for further processing pursuant to the

ORDER below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 an

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 (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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

19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (R1199)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

April 10, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.