01A42998_r
11-10-2004
Deborah E. Boyd, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah E. Boyd v. United States Postal Service
01A42998
November 10, 2004
.
Deborah E. Boyd,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42998
Agency No. 4-H-390-0098-03
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated March 3, 2004, dismissing her formal complaint
of unlawful employment discrimination brought pursuant to Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. The Commission accepts the appeal. 29 C.F.R. � 1614.405.
According to the record, complainant contacted an EEO Counselor on
May 19, 2003, in response to being subjected to an investigative
interview about computer use on that same day. The initial interview
took place approximately seven months later, on December 10, 2003.
Complainant indicated that the May 19, 2003 incident was only one of many
harassing incidents she experienced, from December 2001, to the present.
Complainant further indicated that these incidents included unwelcome
sexual remarks by a named management official.
The EEO Counselor's Report reflects that complainant submitted a written
chronology of these incidents to the EEO Counselor.<1> The report also
contains a hand-written statement by complainant that she had been
subjected to an �extreme hostile environment� and �also experienced
sexual harassment.� Regarding the May 19, 2003 incident, complainant
stated that she was called into a supervisor's office over a public
address system, and that it was done in a particularly ominous manner,
which caused her severe emotional distress. Complainant also stated that
her computer use was appropriate, and the investigative interview was
completely unwarranted. Further, complainant stated that she experienced
severe emotional distress associated with the incidents she describes,
which was increasing in severity as these incidents continued, requiring
medical treatment, including hospitalization in June 2003.
The EEO Counselor's Report also indicates that complainant claimed
discrimination/harassment, based on sex and in reprisal for prior
protected activity. Complainant specifically noted that reprisal was
associated with the EEO activity of complainant's spouse, a co-worker at
her facility. Complainant filed a formal complaint on December 15, 2003.
In its March 3, 2004 final decision, the agency determined that
complainant's complaint was comprised of two claims, identified in the
following fashion:
Was complainant subjected to discrimination based on sex (female) and
retaliation (unspecified), when on May 19, 2003, she was subject to an
investigative interview for using a computer; and
Was complainant sexually harassed, which lead to physical and mental
disabilities.
In a footnote, the agency first addressed the basis of reprisal.
Specifically, the agency found that complainant had not engaged in
prior EEO activity, and that she therefore had no standing to assert
the basis of reprisal.
The agency then dismissed claim 1 for failure to state a claim.
The agency found that like an �official discussion,� an investigative
interview does not result in an actionable harm to complainant. The
agency dismissed claim 2 on the grounds of untimely EEO Counselor contact.
Specifically, the agency determined that complainant's chronology of
harassing incidents commenced in March 2002, and culminated on January
9, 2003, such that her May 19, 2003 initial EEO Counselor contact was
beyond the 45-day time limit.
On appeal, complainant argues that the harassing incidents were severe
and continuous, and that they continued through the filing of the
instant complaint and thereafter. Complainant submits extensive medical
records showing her treatment for severe work-related emotional trauma,
concerning periods both prior to and after May 19, 2003. Complainant also
submits documentation from the Office of Personnel Management, dated March
24, 2004, indicating that she was approved for disability retirement.
Dismissal of Reprisal as a Basis
The Commission determines that the agency improperly dismissed reprisal
as a basis when it found that complainant had no prior protected EEO
activity. The Commission has held that the retaliation provisions of
the EEO statutes prohibit retaliation against someone closely related
to, or associated with, a person, such as complainant's spouse, who
exercises his statutory EEO rights. Thus, it is unlawful for an agency
to retaliate against an employee because his or her spouse, who is also
an employee, pursued the EEO complaint process. Moreover, retaliation
against a close relative of an individual who opposed discrimination can
be challenged by both the individual who engaged in protected activity
and the relative, where both are employees. See EEOC Compliance Manual,
Section 8, �Retaliation;� No. 915.003 (May 20, 1998)(�Compliance Manual�);
DeMedina v. Reinhardt, 444 F. Supp. 573 (D.D.C. 1978).
Claim 1
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).
However, 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). 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. Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993).
Here, we find that the agency improperly identified claim 1. The agency
treated the matter that it identified in claim 1 merely as an isolated
incident. The Commission determines that complainant's complaint, when
properly framed, states an actionable claim of harassment, based on her
narrative chronology, including the incidents in claim 1 and claim 2.
In her chronology, and other statements, complainant identified three
agency officials who purportedly undertook numerous actions for the
purpose of harassing her. Complainant claimed that one made disparaging
remarks to complainant about her husband, frequently referring to
him as �my smart ass husband,�as well as sexually offensive and lewd
remarks toward complainant (lap-dancer), which caused her significant
emotional distress. Complainant further generally related numerous
on-going work-place incidents, calculated to make her feel worried
about inadvertently making mistakes, and causing her to experience
extreme pressure in the performance of her duties, all for the purpose
of harassment. Complainant claimed that this harassment occurred even
after she contacted an EEO Counselor and filed her formal complaint.
Complainant also alleged that the agency subjected her husband to
numerous acts of harassment, including threats of discipline, threats
of termination, and threats of cutting his route, for the purpose of
intimidating them both. Complainant indicated that she believes that the
agency was trying to get rid of both of them, resulting in financial ruin
to their family. Complainant contended that the work atmosphere became
so hostile, she eventually had to be hospitalized due to a �nervous
break-down.� Complainant states that she became so incapacitated, due
to work-related stress, that she was approved for disability retirement
in March 2004. By alleging such pattern of harassment, complainant
has stated a cognizable claim under the EEOC regulations. See Cervantes
v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Moreover, in reviewing these statements, we note that a large number
of the incidents concern adverse actions and/or harassing incidents
taken against complainant's husband. We further find that complainant
contends that the actions taken against her husband were intended to upset
her as well, and place her in fear of her husband losing his employment.
Moreover, we also note that the Commission has recognized that retaliation
against one spouse may be alleged as an actionable claim by the other
spouse. See Compliance Manual, supra. Therefore, for both reasons,
we find that the purported adverse treatment of complainant's husband
may properly be included in her individual harassment claim.
Finally, we find that complainant's chronology covers December 2001
to July 9, 2003. We find that because some of the incidents of alleged
harassment occurred within forty-five days of complainant's initial EEO
contact, all alleged incidents of harassment are considered timely raised
with an EEO Counselor
Claim 2
Based on our analysis, we find that the agency erred in construing
complainant's harassment claim as alleging only sexual harassment.
Additionally, we find that because some of the alleged incidents
of harassment were timely raised with an EEO Counselor, all alleged
incidents are deemed timely raised, as discussed above.
As a final matter, we note that, on appeal, complainant states that her
disability retirement was the result of the harassment she suffered
while at the agency. Should complainant wish to pursue the issue
of constructive discharge within the EEO complaint process, we advise
complainant to request, in writing, that her complaint be amended to
include a claim of constructive discharge.
In conclusion, we determine that the agency's dismissal of reprisal
as a basis was improper and is REVERSED. Moreover, we determine find
that the agency improperly framed and improperly dismissed the captioned
complaint, and its dismissal of the complaint is REVERSED. The complaint,
as identified here, is REMANDED to the agency for further processing in
accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims, as framed herein as
a harassment claim, 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 (K0501)
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 (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 10, 2004
__________________
Date
1The EEO Counselor's report contains a
point-by-point response by management to complainant's chronology;
however, complainant's chronology itself is not of record. However,
we note that the formal complaint includes an attachment, which is a
chronology describing harassing incidents. We presume that this is the
same chronology, or a substantially similar one, that was submitted to
the EEO Counselor.