0120113415
12-22-2011
Cindie M. Chessor, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Cindie M. Chessor,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120113415
Agency No. 4C-370-0012-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 5, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Part-time flexible Window Clerk at the Agency’s Spring Hill Post
Office in Spring Hill, Tennessee. On June 16, 2011, she filed a formal
complaint alleging that the Agency discriminated against her based on
her sex (female) and reprisal for prior protected EEO activity1 under
Title VII when she was subjected to harassment, with incidents including:
1. on or about April 9, 2009, the Postmaster yelled at the clerks about
an unfavorable mystery shopper review;
2. on March 25, 2010, the Postmaster denied her leave to attend her
step-mother’s funeral;
3. since December 2010 and continuing, male employees do not work the
window as much as female employees, and unlike her, males don’t get
corrected;
4. on December 22, 2010, the Postmaster told her he was tired of people
getting hurt, and threatened that he would be watching her;
5. on March 7, 2011, the Postmaster criticized her for hooking two GP
containers and told her there would be no more “trains” since she
got hurt;
6. on March 31, 2011, the Postmaster gave her a discussion in which the
Supervisor of Customer Services also participated about her behavior
and attitude;
7. on April 8, 2011, the Postmaster called employees slobs;
8. on May 11, 2011, the Postmaster yelled at her about parking improperly,
said she was a miserable human being who nobody in the office liked,
and asked her to provide medical documentation to support her request
to leave early for illness; and
9. on June 2, 2011, the Postmaster questioned her about her medical
documentation.2
The Agency dismissed incidents 1, 2 and 4 for failure to timely initiate
EEO counseling. It reasoned that Complainant did not initiate EEO
counseling until April 18, 2011, more than 45 calendar days from when
these incidents occurred. The Agency dismissed the remainder of the
complaint for failure to state a claim. It reasoned that Complainant
was not aggrieved.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the
date of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. §�
�1614.105(a)(1) & .107(a)(2). The time limit to seek EEO counseling shall
be extended when the individual shows she was not notified of the time
limit and was not otherwise aware of it. 29 C.F.R. § 1614.105(a)(2).
On appeal, Complainant contends that she was unaware of the 45 calendar
day time limit to initiate EEO counseling. The record contains an
affidavit by the Postmaster stating that poster 72 has been on display in
Complainant’s facility since at least February 13, 2009. This poster
advises of the 45 calendar day time limit to initiate EEO counseling.
The Postmaster stated this poster has been posted by the break room,
the outer lobby, and on the main bulletin board near the time clock and
that Complainant walks by the main bulletin board everyday. Based on
the above, we find Complainant had actual or constructive notice of the
45 calendar day time limit to initiate EEO counseling.
A hostile work environment claim is comprised of a series of separate
acts that collectively constitute one unlawful employment practice.
National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117
(2002). Unlike a claim which is based on discrete acts of discrimination,
a hostile work environment claim is based upon the cumulative effect
of individual acts that may not themselves be actionable. Id. at 115.
A hostile work environment claim will not be time barred if all acts
constituting the claim are part of the same unlawful practice even if some
component acts of hostile work environment fall outside the statutory
time period so long as an act contributing to the claim falls within
the filing period. Id. at 117.
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. 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. 29 C.F.R. §§
1614.103, .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 21, 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, 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.
We find that the Agency properly dismissed incidents 1 and 2, which
occurred in April 2009 and March 2010, for failure to timely initiate
EEO counseling. The time gap between alleged harassing incidents 1 and 2
and the cluster of harassing incidents starting in December 2010 is too
large for the earlier incidents to be considered part of the same one
unlawful employment practice. Further, incident 2, the denial of leave,
is a discrete act. Accordingly, incidents 1 and 2 are dismissed.
The portion of incident 3 about male employees not working at the window
as much as female employees fails to state a claim because Complainant
has not shown she was harmed. Complainant, a Window Clerk, did not
contend working at the window was an unfavorable assignment, or that it
somehow denied her opportunities for advancement, nor does she contend
that females were segregated. Accordingly, the above portion of claim
3 is dismissed.
We find that the portion of incident 3 about being corrected and incidents
4 through 9 state a claim of harassment. While at first glace these
incidents do not appear to be sufficiently severe or pervasive to rise
to the level of actionable harassment, a reading of Complainant’s
complaint shows she is alleging sufficiently abusive work environment
to state a claim of harassment.
The above portion of incident 3 regards nitpicking about Complainant’s
performance and conduct. Incident 4 regards nitpicking and the threat
of constant monitoring. Incident 6 regards an intrusive discussion
with accusations about Complainant’s behavior and attitude, with a
threat to transfer her boyfriend if their relationship was causing any
problems at work. Taken together with incident 8, Complainant has stated
a claim of harassment. On this later incident, Complainant wrote that
in an exchange of some duration, the Postmaster screamed at her that she
was a troublemaker who no one in the office liked, and was a miserable
human being. We also find that the above portion of incident 3 and
incident 4 are timely under National Railroad Passenger Corporation
v. Morgan, Jr. They are part of the one unlawful employment practice
which includes incidents extending into the 45 calendar day time limit
(incidents 5 through 9). The incidents are tied together because most
are allegedly perpetrated by the same person, most are similar in nature,
and they do not contain large time gaps between them.
On appeal, Complainant writes about additional incidents of alleged
harassment which occurred after she drafted her complaint. These include
receiving a letter of warning dated June 14, 2011, from the Postmaster
for improper conduct in relation to the confrontation in incident 8;
incidents of being unfairly corrected by the Postmaster on her performance
and conduct; and being harassed by a co-worker. If Complainant wishes
that these new incidents be included in her complaint, she should promptly
write a letter to the EEO Director or Complaints Manager (or designee) of
her servicing Agency EEO office describing the new incidents and stating
she wishes to amend her complaint to include them. Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at 5-9 & 5-10 (Nov. 9, 1999). Also, in some of her writings, Complainant
suggests she may be claiming discrimination based on disability, but this
is unclear. If Complainant wishes her complaint to include this basis,
she should notify one of the above officials in writing.
The Agency’s decision is AFFIRMED in part and REVERSED in part.
On remand, the Agency shall process Complainant’s harassment claim, with
the exception of incidents 1, 2, and the portion of incident 3 involving
male employees not working at the window as much as female employees.
ORDER (E0610)
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.
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
December 22, 2011
__________________
Date
1 While it is not clear, it appears that the reprisal claim for prior
EEO activity starts with incidents occurring after April 18, 2011,
or sometime later.
2 The above definition tracks the Agency’s definition of the complaint,
with an adjustment to better reflect Complainant’s claim. Specifically,
on incident 3 Complainant also claimed that she is discriminatorily
corrected, and we have added this.
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0120113415
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113415