Eva M. Rachinger, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 10, 2009
0120083931 (E.E.O.C. Feb. 10, 2009)

0120083931

02-10-2009

Eva M. Rachinger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Eva M. Rachinger,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120083931

Agency No. 1b-141-0021-08

DECISION

Complainant filed an appeal with this Commission from the agency's final

decision dated August 21, 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.

On May 6, 2008, complainant initiated EEO counselor contact. Informal

efforts to resolve her concerns were unsuccessful. On August 5, 2008,

complainant filed the instant formal complaint. Therein, complainant

claimed that she was subjected to a hostile work environment on the

bases of race, sex, and in retaliation for prior protected activity when:

1. On February 4, 2008, a group leader (GL-1) called her a "pain in the

ass" and taunted her about filing a grievance;

2. On February 8, 15, 21, and 23, 2008, GL-1 failed to assign complainant

the correct task for her seniority level;

3. On April 20, 2008, a supervisor (S1), (a) used profanity during a

disagreement about complainant's correct task for her seniority level;

(b) gave complainant the incorrect task for her seniority level; (c)

told complainant that only she would be timed during her break so that S1

could know if she was late in returning to work; (d) used profanity again

when complainant questioned why only her break would be time-monitored;

4. On May 10, 2008, GL-1 yelled at complainant to, "Go file a grievance"

when she asked him about task assignments;

5. On May 31, 2008, a co-worker (CW-1) moved heavy containers towards

her workstation without warning;

6. On June 15, 2008, a management official (MDO-1) told complainant to

"tone down" her perfume due to complaints;

7. On June 26, 2008, a supervisor (S2) told complainant "I'll take the

grievance" when she told him she would be filing in response to a breach

of protocol.

8. On June 27, 2008, GL-1 did not give complainant the opportunity to

remain at her station and was instead asked to do the least desirable job,

despite her seniority and protocol.

9. On June 27, 2008, management officials (MDO-1 and MDO-2) told

complainant that she could no longer wear perfume at work because it

was offensive;

10. On July 5, 2008, complainant was given the least preferred task by

S1 and was "slapped" 3 times by a co-worker (CW-2) that complainant had

previously testified against;

11. On July 5, 2008, complainant became aware that CW-1 had been mocking

the May 31, 2008 incident to other employees; and

12. On August 1, 2008, GL-1 twice failed to inform complainant that she

needed to fill a different position in the workroom until 15 minutes

had elapsed, generating a backlog and ill will towards complainant among

the workers.1

The agency dismissed complainant's complaint in its entirety on

the grounds of failure to state a claim. Specifically, the agency

stated that complainant had not sufficiently alleged that she was an

"aggrieved person." The agency also dismissed incidents (1) and (2)

as being identical to incidents previously decided by the Commission.

In the alternative, the agency dismissed incident (1) for untimely EEO

counselor contact.

On appeal, complainant maintains that she is an aggrieved person.

In response, the agency requests that we affirm its final decision

dismissing complainant's complaint.

Dismissal for Incidents Previously Decided by the Commission

We find the agency properly dismissed incidents (1) and (2). The

regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the

agency shall dismiss a complaint that states the same claim that is

pending before or has been decided by the agency or Commission. The

record reflects that incidents (1) and (2) have already been addressed

by the Commission in Rachinger v. United States Postal Service, EEOC

Appeal No. 0120082245 (September 25, 2008).

Dismissal for Failure to State a Claim

The agency improperly dismissed the remainder of complainant's complaint

for failure to state a claim. A complaint should not be dismissed unless

it appears beyond a 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. 059700777 (March 13,

1997).

As set forth above, complainant is alleging a hostile work environment.

A fair reading of the record, including complainant's statement on appeal,

reflects that complainant is alleging that she was verbally abused, denied

favorable work assignments, subjected to unwanted physical conduct and

subjected to increased monitoring, while co-workers outside her protected

classes were treated differently. Viewing the remaining alleged incidents

collectively (incidents 3-12), we find that that the alleged incidents

are sufficiently severe or pervasive to state an actionable claim of

harassment.

Accordingly, we AFFIRM the agency's final decision dismissing incidents

(1) and (2) for the reasons stated herein.2 However, we REVERSE the

agency's final decision dismissing the remaining incidents (3-12), defined

herein as a hostile work environment claim and we REMAND this matter back

to the agency for further processing in accordance with 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, D.C. 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, D.C. 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

February 10, 2009

Date

1 We define complainant's complaint with more specificity than the final

agency decision (FAD). On appeal, complainant states that the FAD missed

incidents in her complaint.

2 Because we affirm the agency's dismissal of incident (1) for the

reason set forth herein, we need not address the agency's alternate

dismissal grounds.

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0120083931

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083931