0120091198
06-25-2009
Deborah A. Forkner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah A. Forkner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091198
Agency No. 4G-870-0008-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 15, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 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 harassment on the bases
of race (Caucasian), sex (female), color (White), disability (medical
restrictions), and age (52). In support of her claim of harassment,
complainant indicated that the following events occurred:
1. On July 19, 2008, on her first day at the station, she was referred to
"pretty, blond supervisor;"
2. On July 19, 2008, she discovered that the station was falsifying
postal data and wished to have instructions in writing;
3. On July 24, 2008, she was asked to report to the Postmaster's office;
4. During that meeting, she was made to feel coerced, pressured,
intimidated, and threatened at the station;
5. From July 26th through August 11, 2008, she was made to feel
disappointed in herself and being forced to go against her values and
integrity and her supervisor's treatment was humiliating and demeaning;
6. On August 6th, her tour of duty was changed from 10:30 A.M. to 7:30
PM to Noon to 9 P.M.
7. On October 6, 2008, upon a return to work from sick leave, complainant
received a note from her supervisor to begin her tour at 3 P.M. for the
rest of the week; and
8. From October 10, 2008, and thereafter, complainant was denied
computer access on all systems except for e-mails without explanation.
Complainant believed this was another act by management to humiliate
and aggravate her.
The agency dismissed the complaint indicating that complainant failed
to state a claim of harassment. The agency stated that these events
were isolated incidents and did not rise to the level of harassment.
Further, the agency stated that complainant had not been subjected to
any adverse action. Finally, the agency indicated that some of the
events were raised in an untimely manner. Therefore, the agency also
dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2)
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 the case at hand, complainant alleged that she was subjected to
harassment. In determining whether a harassment complaint states a
claim in cases where a complainant had 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).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found
that remarks or comments unaccompanied by a concrete agency action
usually are not a direct and personal deprivation sufficient to render
an individual aggrieved for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No.05940695
(February 9, 1995). Upon review of the record, we find that complainant
has stated a claim of harassment.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c). The Commission finds that "[b]ecause the incidents
that make up a hostile work environment claim collectively constitute
one unlawful employment practice, the entire claim is actionable, as
long, as at least one incident is part of the claim occurred within the
filing period. This includes incidents that occurred outside the filing
period that the [complainant] knew or should have known were actionable
at the time of their occurrence." EEOC Compliance Manual, Section 2,
Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National
Railroad Passenger Corp v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that at least one of the incidents comprising of
complainant's hostile work environment claim occurred within the 45-day
time period preceding to complainant's October 27, 2008 EEO Counselor
contact. Therefore, complainant's claim of harassment was raised in
a timely manner. As such, we find that the agency's dismissal of the
complaint pursuant to 29 C.F.R. � 1614.107(a)(2) was inappropriate.
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 (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
June 25, 2009
__________________
Date
2
0120091198
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091198