0120083409
01-08-2009
Donna Miranda, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donna Miranda,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083409
Agency No. 4F-913-0055-08
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated June 26, 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. In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Hispanic), sex (female), and color
(brown) in that she was subjected to harassment and different treatment
when:
1. her request for a change in schedule for January 12, 2008, was denied
2. her supervisor yells at and bullies her, and on May 16, 2008, the
supervisor disapproved 20 minutes of overtime, and in so doing, was very
loud and created a scene,
3. she is treated differently regarding PS Forms 3996 (used for requesting
overtime and auxiliary assistance); and on June 6, 2008, her supervisor
asked her why she used unauthorized overtime, that he would report it on a
"17 form", and would have given her discussion if she had not called in
by 3 PM,
4. she is watched more than her peers by her supervisor, he tells her to
get off the workroom floor whereas her peers are allowed to stay there and
chat, and on February 29, 2008, he asked her why she cased coverage, and
5. she is given different instructions than her peers, and is not
permitted to take care of her vacation holds.
The FAD dismissed part 1 of the claim on the grounds that complainant
did not initiate EEO counseling until March 11, 2008, beyond the 45
calendar day time limit to do so. It dismissed the remainder of the
complaint for failure to state a claim. It reasoned that complainant
was not aggrieved and that the incidents did not rise to the level of
actionable harassment. It also reasoned that there was no indication
complainant was disciplined regarding unauthorized overtime and casing
mail, and complainant acknowledged to her supervisor that she did not
need the 20 minutes of requested overtime on May 16, 2008.
On appeal, complainant indicates that her supervisor perpetrated the
above incidents, and he does such things to her daily and continually.
She writes that he has threatened her with discipline numerous times.
In opposition to the appeal, the agency argues that the FAD should
be affirmed.
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. 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).
We disagree with the FAD's assessment that complainant's complaint
does not state a claim of harassment. Complainant alleges there is one
perpetrator, and taken together, these incidents state a claim. She is
alleging daily harassment which includes ongoing yelling, bullying,
unfair monitoring, and unfair treatment with time needed to do her
route and overtime. Regarding the 20 minutes of overtime, complainant
alleged that when another carrier requests overtime, the supervisor
approves it, and the carrier simply won't use it if it is not needed.
This alleviates the worry of not properly estimating the time needed
to finish a route and being written up if a carrier does not finish
when expected. Complainant appeared to suggest she was pressured to
state that she would finish up within 8 hours.
The Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that
"discrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges." Id.
Finally, the Court held that such untimely discrete acts may be used as
background evidence in support of a timely claim. Id.
Applying the above standard, we affirm the FAD's dismissal of item 1 of
the claim. 29 C.F.R. � 1614.105(a)(1) and .107(a)(2).
The FAD is affirmed in part, and reversed in part.
ORDER (E0408)
The agency is ordered to process parts 2 through 5 above of complainant's
harassment and disparate treatment 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 (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 (T0408)
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 (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
January 8, 2009
__________________
Date
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0120083409
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083409