0120083580
02-05-2009
Connie Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Connie Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083580
Agency No. 4G-730-0051-08
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
dated July 16, 2008, 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
At the time of her complaint, complainant was a regular city carrier with
the Hennessey Post Office in Hennessey, Oklahoma. In her June 24, 2008
complaint, complainant alleged that she was subjected to discrimination
based on her sex (female), age (48), and reprisal for prior protected
EEO activity when she was harassed from March 2, 2008, to the present
by her postmaster.
Much of the claimed harassment was the postmaster setting unrealistic
expectations for the amount of time complainant had to prepare and
complete delivery of her route, and repeated close monitoring and
observation of her at the post office and on her route. Complainant
claimed these unrealistic expectations forced her to walk at an
uncomfortable pace, and skip lunch and breaks. When she did not meet the
postmaster's expectations or engaged in allegedly time wasting activity,
the postmaster allegedly kept up his intensive monitoring, pressured
complainant with comments, threatened her with corrective and disciplinary
actions, and on May 14, 2008, gave her a negative route evaluation.
To a lesser extent, complainant alleged that the postmaster harassed
her about work practices relating to safety and a form. She raised
an incident of the postmaster getting angry with her for not timely
submitting and completing a form estimating route time, and warning her
for not setting the emergency brake on her truck.
In her complaint, complainant also alleged that the postmaster
discriminatorily inquired about her schedule with her second employer.
The postmaster was trying to determine if complainant was working a
second job while on sick leave. She also claimed that her request to
come in early on April 16, 2008 so she would not have to use annual
leave was denied by the postmaster, resulting in having to use leave.
Complainant claimed that on April 21, 2008, the postmaster only granted
a request for sick leave after she told him her doctor would speak to
him personally if necessary.
Complainant also alleged in her complaint that the postmaster told
offensive jokes. She also claimed therein that on several occasions
he got very physically close to her while monitoring her, bringing
her work, and retrieving things. She wrote that he once brushed up
against her hand and another time up against her while he was reaching.
Complainant contended this was unnecessary, and was sexual harassment.
The FAD dismissed the complaint for failure to state a claim. It reasoned
complainant was not harmed. On appeal, complainant argues she was
harmed, and contends the harassment is continuing. She alleges that the
monitoring and comments about her productivity continue. She indicates
that on or about October 15, 2008, the postmaster gave her a formal
discussion for failure to signal and leaving a truck security door open,
and also told her she was did not properly lift nor properly wear her seat
belt. She alleges that the postmaster requires her to bring in medical
documentation to account for each time she is off work due to stress.
She also submits a letter of warning by the postmaster dated November
3, 2008, for failure to immediately report an injury to her back and
deviating from her route.
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, 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.
The claimed actions of the postmaster setting unrealistic expectations
for the amount of time for complainant to prepare and complete delivery
of her route, coupled with repeated frequent intensive monitoring and
observation of her and pressuring her with comments, threats of corrective
and disciplinary actions; and a negative route evaluation state a claim.
If these actions occurred as claimed and are discriminatory, this could
alter the conditions of complainant's employment. Complainant contends
the above forces her to walk at an uncomfortable hurried pace, and to
skip lunch and breaks. The remaining claimed actions are part of the
harassment claim, i.e., the postmaster using his supervisory relationship
to create a hostile work environment for complainant. This includes
the incidents regarding denial of change of schedule, leave matters,
comments about complainant's safety practices and the form, the October
2008 formal discussion, the November 3, 2008 letter of warning, and the
alleged sexual harassment and jokes.
The FAD is reversed.
ORDER
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The remanded claim is whether complainant was
discriminated against based on her sex (female), age (48), and reprisal
for prior EEO activity when she was harassed from approximately March 4,
2008, onward by the postmaster. The agency shall acknowledge to the
complainant that it has received the remanded claim 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 (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
February 5, 2009
__________________
Date
2
0120083580
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083580