0120120813
04-27-2012
Jennifer H. Edwards, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Jennifer H. Edwards,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120120813
Agency No. 4C-400-0077-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 1, 2011, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. We REVERSE the decision and REMAND the matter for processing, consistent with the Order below.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency's Vine Grove Post Office facility in Vine Grove, Kentucky.
On October 14, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age (41) when:
1. On August 19, 2011, the Postmaster questioned Complainant and accused Complainant of falsifying her time, and subsequently gave her a Pre-Disciplinary Interview (PDI) for the same issue on August 24, 2011; and
2. From July 8, 2011 through August 17, 2011, the Postmaster harassed Complainant, in six separate incidents.
Following the filing of her complaint, Complainant alleged that the Postmaster retaliated against her in six additional incidents, which included denying Complainant available work, subjecting her to heightened scrutiny and observations, asking her if she wanted to look for a new job and giving her a seven-day suspension on December 24, 2011.
In its decision, the Agency dismissed the complaint for failure to state a claim. The Agency reasoned that Complainant was not aggrieved because the official discussion in August was not used as the basis for further disciplinary action. The Agency concluded that the instant formal complaint asked the Commission to "intervene and impose their judgment on how to run the day to day operations of the Agency . . . "
In addition, with regard to issue #2, the Agency found that the allegations were too vague. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterated the facts, detailing a "pattern and practice of harassment, intimidation, and humiliation" which allegedly occurred in six incidents between July 8, 2011 and August 19, 2011, the date she contacted an EEO Counselor. In her appeal, Complainant also identified the six additional incidents, that occurred after the filing of her complaint, which Complainant attributes to the Postmaster's unlawful retaliation.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint 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 sex or age, as is alleged in this case. See 29 C.F.R. �� 1614.103; 1614.106. The Commission's federal sector case precedent has long defined 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In the present case, we find that the complaint states a claim. As noted above, Complainant has identified a series of alleged Postmaster actions including, among other things, being subjected to disparate treatment because of her sex and age by the Postmaster when he subjected her to false accusations, threats, heightened scrutiny, onerous assignments, and intimidation.1 Complainant alleges that the Postmaster did not subject younger, male employees to the harassment and humiliation. The record also shows that the Postmaster subjected Complainant to disciplinary action after the filing of her complaint.
Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. The Commission has previously held that an Agency should not ignore the "pattern aspect" of a Complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matters complained of. Meaney v. Department of the Treasury, EEOC Request No. 05940169 (November 3, 1994). By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations that a reasonable person in Complainant's circumstances would have found to be hostile or abusive. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Accordingly, we find that the Agency improperly dismissed the complaint.
Finally, although Complainant did not explicitly raise reprisal prior to this appeal, we note that once a timely complaint is filed with the Commission, it may be later amended to cure technical defects. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 464 (5th Cir. 1970). Accordingly, because it is apparent from Complainant's appeal statement that she wishes to raise reprisal as a basis, we find that on remand, the Agency should amend the complaint to include Complainant's referenced claims of reprisal.
CONCLUSION
The Commission REVERSES the Agency's final decision dismissing Complainant's complaint and REMANDS the entire complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claims (which include the bases of sex, age and reprisal) 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 tends 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
April 27, 2012
__________________
Date
1 Complainant states that a similar EEO complaint was filed by two female clerks in her office during the summer; and consequently, the Agency was aware of the potential violations.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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