01a54605
10-12-2005
Elizabeth M. Eckert, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Elizabeth M. Eckert v. United States Postal Service
01A54605
October 12, 2005
.
Elizabeth M. Eckert,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal No. 01A54605
Agency No. 1C-271-0020-05
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 19, 2005, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In her complaint, complainant alleged that she was subjected
to discrimination on the basis of disability when:
On January 8, 2005, the 204-B (Acting Supervisor) questioned complainant
about her medical restrictions and made offensive remarks to her, such
as: �What exactly are your medical restrictions? There must be something
more productive you can do within your restrictions... You must be bored
being so non-productive... We supervisors talk about you. Everyone knows
you have a Gravy Job. You're so non-productive. You're slow. Just let
us know when you want to start earning your paycheck;�
On January 22, January 29, and February 5, 2005, the 204-B singled
complainant out and in an intimidating manner inspected her work several
times a day and ordered complainant's co-workers to count her mail in
front of other co-workers;
On April 2, 2005, the 204-B mocked complainant in front of co-workers
when the supervisor accused her and a co-worker of miscounting the mail
in her operation, and
On April 2, 2005, the 204-B accused complainant of abusing her break
and intimidated her by getting very close to complainant's face and
whispering softly in her ear.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency concluded that complainant had not shown she
was �aggrieved� by the supervisor's actions nor that she suffered any
�adverse action.� According to the agency, the incidents do not show
that she was denied any entitlement in regard to a term, condition,
or privilege of her employment. Moreover, the agency determined that
even upon looking at the totality of the circumstances, the actions
complained of are neither sufficiently severe or pervasive to create a
discriminatory hostile or abusive working environment.
On appeal, complainant insists that she states an actionable claim.
She reiterates the incidents, providing further detail on the actions of
which she complains. She encloses a copy of the grievance settlement
in which management agreed to treat her with �dignity and respect and
provide her a workplace free from harassment,� and that it would make
�every effort to respect every employee's personal physical space.�
Step 1 Resolve, dated 4/29/05. She also encloses a copy of a letter,
dated January 23, 2005 and written by her husband, to agency management
denouncing the treatment complainant has received at the hands of her
204-B supervisor and how it has been affecting her personally.<0> The
agency, in its response, reiterates its position and requests that we
affirm its FAD.
EEOC's regulations authorize an agency to dismiss an EEO complaint
that fails to state a claim for which relief can be granted. See 29
C.F.R. � 1614.107(a) (2004). The standard that must be met to justify
a dismissal on this ground is similar to that required by the courts
under Fed. R. Civ. P. 12(b)(6). See Cobb v. Dep't of the Treasury,
EEOC Request No. 0597007 (Mar. 13, 1997). Moreover, our case law
requires that the complainant be �aggrieved,� meaning, he or she must
have �suffered direct and personal deprivation at the hands of the
employer.� Gilyard v. Dep't of Energy, Appeal No. 01A01550 (June 9,
2003) (citing Hobson v. Dep't of the Navy, EEOC Request No. 05891133
(Mar. 2, 1990)); see also Diaz v. Dep't of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994) (defining 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.). Under Section
107(a) the allegations in a complaint must be taken as true and all
reasonable inferences must be drawn in favor of the complainant. See id.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that no set of facts can be established that
would entitle the complainant to the relief sought in the complaint.
See id. (citing Conley v. Gibson, 355 U.S. 40, 45-46 (1957)).
Nevertheless, we have held that where a complaint does not challenge
an agency action or inaction regarding a specific term, condition, or
privilege of employment, the claim may survive as evidence of harassment
if it is sufficiently severe or pervasive to alter the conditions of the
complainant's employment. See Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993). Whether the harassment is sufficiently severe to trigger a
violation of EEOC statutes must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or a
mere offensive utterance, and whether it unreasonably interferes with an
employee's work performance. See Harris, 510 U.S. at 23; Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994).
We first point out that the matter at issue raises a �she said, she said�
situation. Everything complainant alleges, the supervisor firmly denies.
As we are at pre-investigation, procedural stage, we accept as true the
claims complainant has made. We agree that individually complainant's
claims are not actionable because the individual acts � again, viewed
individually � have not resulted in loss of a term, condition or privilege
of complainant's employment. However, viewed as whole, we find the claims
have rendered complainant aggrieved. These are not isolated incidents,
they have occurred over a period of at least four months. Under these
particular circumstances, we find this to be pervasive enough to meet
the requirement of a harassment claim.
Furthermore, we find that the treatment she received at the hands of the
supervisor to have been sufficiently severe. The supervisor allegedly
made degrading and intimidating comments to complainant about her work
ethic and productivity in front of other employees. The supervisor also
engaged in non-verbal mockery of complainant in front of co-workers, and
constantly checked her cases and counted her mail � on occasion, several
times in one day. The supervisor even instructed other co-workers to
monitor complainant's work. Complainant maintains that no other worker
at the facility was monitored and treated in this manner. We find this
conduct to be more than a breach of general civility codes. Indeed, we
find that a reasonable person under these circumstances would consider
this conduct by a supervisor to be �objectively offensive as to alter the
conditions of the victim's employment.� Oncale v. Sundowner Offshore
Servs, Inc., 523 U.S. 75, 81 (1998). Further investigation into the
claims is needed to find if indeed the conduct occurred as alleged, if
it was based on her disability, and if there is any basis for imputing
liability to the agency..
Accordingly, the Commission REVERSES the agency's final decision.
The complaint is hereby REMANDED to the agency for further processing
in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim of harassment in
accordance with 29 C.F.R. � 1614.108. 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 (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 (S0900)
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. 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 (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
October 12, 2005
__________________
Date
0 1Although it is true that we do not accept
new evidence on appeal when the evidence could have been made available
during the investigation, that rule does not apply here as complainant's
complaint never reached the investigation stage. We shall consider
the letter along with any other evidence that currently exists on
the record.