0120180280
01-26-2018
Glenda N,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Glenda N,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120180280
Agency No. 1C-912-0008-17
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 20, 2017, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processor/Handler at the Agency's Network Distribution Center in Philadelphia, Pennsylvania. On April 22, 2017, Complainant initiated contact with an EEO Counselor. Informal efforts at resolution were not successful. On August 22, 2017, Complainant filed the instant formal complaint, alleging discrimination in reprisal for prior protected activity.
On September 20, 2017, the Agency issued a final decision. The Agency defined three claims, as follows:
1. On March 19, 2016, Complainant was assaulted by a co-worker and management did nothing;
2. On April 7, 2017, a supervisor referred to Complainant as "Ms. Clogs" and accused her of disrupting the operation; and
3. On April 16, 2017, Complainant was called into the office to have her work
operation explained to her.
The Agency dismissed claim 1 for failure to comply with the 45-day time limit for contacting an EEO Counselor under 29 C.F.R. �� 1614.107(a)(2) and 1614.105(a)(1). Specifically, the Agency averred that Complainant reported an alleged assault by a coworker to management as early as March 16, 2016 but did not contact the EEO Counselor about that matter until April 21, 2017.
The Agency dismissed claims 2 and 3 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
Upon comprehensive review of the entire record, the Commission finds that the Agency improperly dismissed Complainant's complaint as more fully discussed below.
Claim 1
The Agency mischaracterized Complainant's first claim as described in the hand-written narrative that Complainant provided during pre-complaint counselling. Specifically, the matter identified in this claim was not confined to a singular incident on March 19, 2016. We acknowledge that Complainant indeed stated that she had reported to her management that a fellow coworker had assaulted her on March 19, 2016. Complainant, however asserts further that she thereafter caught the coworker who she had accused of assault taking unauthorized pictures of her. Complainant purportedly reported this action to management who ordered the coworker to cease taking pictures and delete those already taken of Complainant. On February 4, 2017, the Agency held a meeting with supervisors, a union representative, the coworker and Complainant. At the conclusion of that meeting, Agency management directed both Complainant and the coworker to avoid each other. Complainant stated, however, that over the next six weeks, she made every effort to comply while the coworker at issue taunted Complainant about the 2016 assault. According to Complainant, when she Complainant reported the coworker's ongoing contact, management questioned the coworker who did not deny it. Complainant also attempted to present to management a witness to the coworker's continuing to antagonize Complainant. Despite these efforts, Complainant alleged that Agency management declined to intervene further in the conflict.
In short, a fair reading of the circumstances of the matters raised in the first claim reflect that the alleged discrimination action was not confined mere to a purported assault in March 2016. Instead, Complainant asserted that management failed, in the six weeks after a February 2017 meeting, to enforce a no contact order that had it issued to Complainant and the coworker. We find that Complainant's contact with the EEO Counselor on April 22, 2017 was indeed timely for purposes of 29 C.F.R. � 1614.105(a)(1).
Claims 2 and 3
Claims should not be dismissed for failure to state a claim unless it appears beyond doubt that a complainant cannot prove a set of facts in support of the claim which would entitle her to relief. All of the alleged harassing incidents and remarks must be considered together and in the light most favorable to a complainant in order to determine their sufficiency to state a claim. Cobb v. Dep't. of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997); see also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 at 752-753 (1998).
As noted in our extensive discussion of claim 1, Complainant had alleged a pattern of Agency management actions and inactions regarding the matters addressed in that claim. For the sake of administrative efficiency, in light of our decision to remand claim 1 for further processing, we find it expeditious to remand claims 2 and 3 for further processing as well, and construe all subject matters broadly in the context of a general harassment claim. See Cervantes v. U.S. Postal Serv., EEOC Request No. 05930303 (Nov. 12, 1993).
CONCLUSION
The Agency's final decision dismissing the formal complaint is REVERSED. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, unless the matter is otherwise resolved prior to that time. If 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). 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, 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 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 (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
Carlton M. s signature
Carlton M. Hadden, Director
Office of Federal Operations
January 26, 2018
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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