0120113150
12-02-2011
Geraldine M. Scott, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Geraldine M. Scott,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120113150
Agency No. 1H-336-0031-11
DECISION
On June 16, 2011, Complainant filed an appeal from the Agency’s decision
dated May 13, 2011, dismissing her complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's
complaint for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processing Clerk at the Agency’s Processing & Distribution
Center in Tampa, Florida. On April 20, 2011, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on
the bases of age (53) and reprisal for prior protected EEO activity
under the ADEA when:
1. On December 7, 2010, she was harassed about her work performance
resulting in younger employees being used to perform tasks;
2. On March 4, 2011, a co-worker accused her of not performing a job
function1; and
3. On March 5, 2011, she was given an Investigative Interview.
On May 13, 2011, the Agency issued a final decision dismissing the
instant complaint. Specifically, the Agency found that Complainant was
not an "aggrieved" employee within the meaning of 29 C.F.R. §1614.103
and that even if she had been aggrieved, the allegations stated were
not severe or pervasive enough to create a discriminatorily hostile or
abusive work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant asserted that the Agency's final decision
dismissing her complaint was improper. With regard to claim 1 that
she was harassed about her work performance resulting in younger
employees being used to perform tasks, Complainant stated that she was
“strategically segregated outside [her] principle assignment area”
and that younger, contract workers were being used to replace career
employees. Complainant further stated that when addressing an issue
with her Manager, District Operations (MDO), the MDO became aggressive,
“yelling, screaming, waving, and pointing” while on the workroom
floor.
With regard to claim 2 that she was accused of not performing a job
function, Complainant stated that when relieving her younger co-workers
so that they could take a break, her supervisor accused her of not
re-running rejected mail, which was the responsibility of said co-workers.
Complainant stated that her supervisor ran up to her, snatched labels
out of her hand, and yelled at her.
With regard to claim 3 that she was given an Investigatory Interview,
Complainant stated that the Interview was in response to the incident
referenced in claim 2. Complainant alleged that her supervisor did not
speak with the younger co-workers involved. We note that Complainant
alleged additional discriminatory acts on behalf of the Agency, as
described below.
The Agency’s Response to Complainant’s Appeal did not raise any
additional arguments other than those addressed in the final decision.
ANALYSIS AND FINDINGS
On appeal, Complainant demonstrated that additional allegations
of discrimination were not addressed by the Agency in its letter of
acceptance and in its resultant final decision. A review of the record
shows that two formal complaint forms were submitted by Complainant.
One form was dated on April 19, 2011, and one form was dated the following
day, April 20, 2011. Both forms were seemingly sent to the Agency in
the same envelope, which was postmarked April 20, 2011.
The Agency only addressed the allegations taken from the April 19, 2011
formal complaint. The Agency did not address the following allegations,
which have been taken from the April 20, 2011, complaint and summarized
below:
Complainant was subjected to discrimination on the bases of age (53)
and reprisal for prior protected EEO activity under the ADEA when:
1. On February 7, 2011, Complainant was harassed for requesting scheduled
sick leave for an optical examination.
2. On February 16, 2011, when meeting with a supervisor, Complainant
was denied union representation. During the meeting, S1 slammed a stack
of documents onto the table and each time Complainant stood up to exit,
S1 stood up as well.
3. On February 20, 2011, the MDO was made aware of the incident on
February 16, 2011, and the incident was ignored.
4. Between February 21, 2011 and March 10, 2011, Complainant was denied
monetary resolve through the grievance process three times.
5. On April 6, 2011, S2 harassed Complainant with falsely documented
attendance records and was instructed by the MDO to conduct an
investigative interview for attendance. In accordance, S1 falsified
documentation, S2 changed the attendance records of employees under forty
(40) years old, and the MDO instructed S1 to harass and threaten “an
employee” over the age of forty (40).
6. On an unspecified date, Complainant was retaliated against with regard
to Agency Nos. 1H-336-0002-09 and 1H-336-0099-09.
The Agency did not address these allegations in its dismissal. The
Commission has held that an agency's failure to address allegations
is tantamount to a dismissal. See Kapp v. Dep’t of Navy, EEOC
Request No. 05940662 (Jan. 23, 1995). We therefore analyze all of the
aforementioned issues as if the Agency had dismissed them all for failure
to state a claim.
EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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;
§1614.106(a).
Upon review of the record, we find that, considering the totality of the
circumstances, the Agency improperly dismissed the claims at issue for
failure to state a claim. In Harris v. Forklift Sys., Inc., 310 U.S. 17,
21 (1993), the Supreme Court found that harassment is actionable, even
absent a claim that an agency's action harmed a complainant with regard
to a specific term, condition or privilege of employment, as long as the
complainant can otherwise demonstrate that the conduct was engaged in
with the purpose of creating a hostile work environment, and that the
conduct is sufficiently severe or pervasive as 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 proffer 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. Dep’t of the Treasury,
EEOC Request No. 05970077 (Mar. 13, 1997).
After a careful review of the record, we find that Complainant states
a claim of hostile work environment harassment. The Commission has
repeatedly found that claims of a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim. See
Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July
12, 1996); Banks v. Health and Human Serv., EEOC Request No. 05940481
(Feb. 16, 1995). Here, however, we note that Complainant alleges,
among other things, that she was harassed on numerous occasions about her
performance and for taking sick leave, that management conspired against
her, and that her supervisors acted in an intimidating manner on more than
one occasion. This set of allegations is sufficient to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
Agency’s final decision and REMAND the complaint for further processing
consistent with the Commission's decision and applicable regulations.
The Agency shall comply with the Commission's ORDER set forth below.
ORDER (E0610)
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 (K0610)
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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
December 2, 2011
Date
1 In her appeal, Complainant states that her supervisor, not a co-worker,
accused her of not performing the job function at issue.
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01-2011-3150
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113150