01973458
03-03-2000
Evelyn DeGraffenried, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E/N.Y. Areas), Agency.
Evelyn DeGraffenried v. United States Postal Service
01973458
March 3, 2000
Evelyn DeGraffenried, )
Complainant, )
) Appeal No. 01973458
v. ) Agency No. 1B-141-1020-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(N.E/N.Y. Areas), )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges
she was discriminated against when: (1) her supervisor subjected her to
verbal harassment by making comments about women; and (2) her supervisor
failed to properly distribute equipment and workload in the unit.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is VACATED and REMANDED.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a PS-4 Mailhandler, at the agency's Buffalo Processing
and Distribution Center. In her affidavit, appellant reported that
she and one other woman are the only women in the unit. As a result,
complainant averred that their supervisor subjects them to abusive
language and treats them differently because of their sex. For instance,
complainant averred that in April 1996, her supervisor stated, "this
would be a better world without women," and has referred to her as a
"b -t--" and a "troublemaker." Complainant also alleged that the
supervisor approves the males for annual leave or time off, but does
not do the same for complainant and her female co-worker. Complainant
described her supervisor as a hostile person, and also claims that he
has retaliated against her since she filed the instant complaint.
Complainant averred that in April 1996, the supervisor failed to properly
distribute equipment following an instruction from the Manager of
Distribution Operations (MDO) (female). She stated that the supervisor
did not approve of the MDO's instructions, and therefore he did not
facilitate the work delegated to complainant's unit. Complainant alleged
that the male Mailhandlers always received the equipment they request,
whereas she waited for 40 minutes to obtain the necessary equipment.
According to complainant's affidavit, she felt humiliated by this.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on August 12, 1996.
At the conclusion of the investigation, complainant was provided a copy
of the investigative file and informed of her right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. Complainant requested that the agency issue
a FAD.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of discrimination, noting that the supervisor's comment,
though clearly offensive, was not sufficiently severe or pervasive to
constitute a hostile work environment. With respect to her second claim,
the agency found it had articulated a legitimate, nondiscriminatory
reason for its actions, namely, the supervisor averred that complainant's
equipment was not the priority at that time. In conclusion, the agency
determined that complainant failed to demonstrate by a preponderance of
the evidence that she was discriminated against on the basis of sex.
CONTENTIONS ON APPEAL
Complainant contends on appeal that she has been subjected to a pattern
of discrimination and sexual harassment which has created a hostile
work environment. She reports that despite her repeated complaints to
management, the hostile work environment has not stopped.
In support of her contention, complainant cites numerous examples of
harassment and discrimination, and provides copies of EEO complaints she
has filed since she filed the instant complaint. In essence, complainant
argues that she and the only other female Mailhandler have been harassed
since 1987, continuing through February 1998. For example, she submitted
a copy of an EEO complaint (Agency No. 1B-141-0021-97) filed on March
22, 1997, which alleged sexual harassment when she was subjected to
abusive language by her supervisor and co-worker A. Complainant also
submits a copy of an EEO Counselor's report with an EEO contact date of
March 11, 1997 (Agency No. 1B-141-0032-97). Therein, she alleged, among
other things, that her supervisor and co-worker A called her a "b-t--."
In a complaint filed on November 5, 1997 (Agency No. 1B-141-0044-97),
complainant alleged further sexual harassment and retaliation when her
supervisor continuously denied her and the female co-worker annual leave,
while approving it for similarly situated male employees. In support of
her complaints of discrimination, complainant submitted a statement from
a male co-worker dated March 1997. Therein, the co-worker reported that
when he asked the supervisor to sponsor he and his wife for a charity
walk for breast cancer, the supervisor remarked no, and then stated,
"let their breast rot off."
Also in her statement filed for the instant appeal, complainant alleged
that on March 26, 1997, her supervisor referred her to EAP counseling,
for no reason. She also alleged that employees have placed pornographic
material in the safety suggestion box, knowing that the individual who
opened the box was the only other female Mailhandler. Complainant
attached a xeroxed copy of the pornographic material in her appeal.
According to evidence submitted on appeal, when complainant complained
about the material, the Lead Plant Manager simply removed the other
female co-worker from her obligation to the duty, and assigned a male
to open the safety suggestion box.
Complainant alleged that she has repeatedly complained to management about
the harassment that she and the other female worker have received, but
the harasment has not ceased. Rather, she states that the supervisor and
others have retaliated against her for filing complaints. For instance,
she claims her supervisor and co-workers have repeatedly damaged her
vehicle and yelled at her about "squealing." According to complainant,
she has suffered stress and physical symptoms which she directly
attributed to the hostile work environment which she has worked in
throughout the years.
Complainant requests that all of her EEO complaints be consolidated in
order so they may be considered together as one complaint.
The agency stands on the record and requests that we affirm its FAD.
ANALYSIS AND FINDINGS
The fragmentation, or breaking up, of a complainant's legal claim during
EEO complaint processing has been a significant problem in the federal
sector. For complainants, fragmented processing can compromise their
ability to present an integrated and coherent claim of an unlawful
employment practice for which there is a remedy under the federal
equal employment statutes. For agencies and the Commission, fragmented
processing substantially increases case inventories and workloads when it
results in the processing of related matters as separate complaints.<2>
EEOC Management Directive (MD) 110, as revised, November 9, 1999.
To rectify this problem, 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter referred to as 29 C.F.R. � 1614.106(d)) provides that a
complainant may amend her complaint at any time prior to the conclusion
of the investigation to include issues or claims like or related to
those raised in the complaint. Likewise, 64 Fed. Reg. 37,644, 37,661
(1999)(to be codified and hereinafter referred to as 29 C.F.R. �1614.606)
provides that the agency or the Commission may consolidate two or
more complaints of discrimination filed by the same complainant after
appropriate notification to the complainant.
In this case, we find that complainant's claim of sexual harassment
has been fragmented, such that her ability to make a coherent
claim of discrimination has been compromised. Instead of including
complainant's subsequent claims of sexual harassment into the instant
complaint, the agency presumably directed complainant to file additional
complaints. Although the instant complaint may, upon a cursory view,
appear insufficient to constitute a hostile work environment, a further
examination of the record shows that complainant has alleged a pattern of
sexual harassment. The Commission finds, therefore, that complainant's
claim of sexual harassment based on a hostile work environment should
be investigated and adjudicated as one complaint.
In order to rectify the problem and ensure efficient and equitable
processing of the complaint, we remand this matter to the agency so that
the complaints may be consolidated pursuant to complainant's request.
Accordingly, we VACATE the agency's finding of no discrimination,
and REMAND this matter in accordance with the following ORDER, and the
applicable EEOC Regulations.
ORDER
The agency is ORDERED to consolidate for processing the claims of sexual,
racial or retaliatory harassment complainant has filed since August 12,
1996, which are like or related to the instant complaint. Although not
an exhaustive list, the agency shall consolidate the following: Agency
No. 1B-141-1020-96, Agency No. 1B-141-0021-97, Agency No. 1B-141-0032-97
and Agency No. 1B-141-0044-97. In the event complainant filed additional
complaints which are like or related to the instant complaint, the agency
shall consolidate those with the instant complaint as well.
In the event complainant failed to file an EEO complaint regarding the
additional acts of discrimination she alleged in her appeal brief for
the instant appeal, the agency shall consider those allegations as an
amendment of her most recent complaint. The date of the amendment shall
be the date on which complainant alerted the agency to the subsequent
incidents of sexual harassment in her appeal briefs, filed with the
agency and the Commission on February 26, 1998.
Pursuant to 29 C.F.R. �1614.606, the agency shall complete its
investigation within the earlier of 180 days after the filing of the
last complaint, or 360 days after the filing of the original complaint.
The agency shall make every effort to locate and determine the status
of complainant's complaints in the federal EEO process, and consolidate
the complaints for hearing, if complainant requests, or for an agency
final decision.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation, including
evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
March 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________
Date
__________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2See, Cobb v. Department of the Treasury, EEOC Request No. 0597077
(March 13, 1997); Toole v. Equal Employment Opportunity Commission,
EEOC Appeal No. 01964702 (May 22, 1997).