01a55797_r
03-07-2006
Judith Carter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judith Carter v. United States Postal Service
01A55797
March 7, 2006
.
Judith Carter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55797
Agency No. 4A-088-0067-05
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dismissing her formal EEO 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 July 11, 2005, complainant, an EAS-17 Supervisor at the Red Bank,
New Jersey Post Office, filed a formal complaint. Therein, complainant
claimed that she was discriminated against on the bases of race and
sex.
In its undated final decision, the agency determined that the instant
complaint was comprised of the following two claims:
On March 25, 2005, a letter carrier, in a joke, used the word �nigger;
and
On April 6, 2005, the Postmaster told the letter carrier that �others
would have him gone, right Judi,� making it seem like complainant was
one of the �others.�
The agency dismissed the entire complaint for failure to state a claim.
The agency found that complainant was not aggrieved by the alleged
incidents, and, after specifically analyzing the claims under harassment
criteria, that she had failed to articulate a valid claim of harassment.
A review of the record indicates that, regarding the matter that the
agency identified as claim (1), the letter carrier purportedly told
the joke in question using the word �nigger(s)� to another carrier on
the loading dock, and the matter was then reported to complainant in
her supervisory role by two separate offended employees. The record
also shows that in her EEO Counselor report and formal complaint, as
well as reported in the agency's final interview notice, complainant
claimed that on March 29, 2005 the Postmaster stated that using the �n�
word was no big deal because the carrier was telling a joke, and that
�[i]f I say you're a nigger and I can't stand your black ass . . . that
would be different.� Complainant's formal complaint also claimed that in
response, complainant told the Postmaster that she disagreed, and that
the Postmaster repeated the statement, directing it at complainant by
stating �[i]f I say Judi, you're a nigger and I can't stand your black
ass, it would be different.�
With regard to the matter identified by the agency as claim (2), the
formal complaint stated that complainant felt �singled out and put in
an awkward position� when, in an April 6, 2005 meeting in his office,
the Postmaster stated to the letter carrier �[i]f it were up to others,
you would be out of here,� and then turned to complainant and said
�right Judi?� Complainant claims that by doing so, the Postmaster
singled her out and intimidated her in front of the man she accused of
harassment, and that as a result, �that same day [the letter carrier]
confronted [c]omplainant in a threatening manner.� Finally, we note that
the record shows that in the final interview notice sent to complainant,
the Postmaster's response to the complaint is recorded as stating that,
after the April 6, 2005 meeting �[h]e was advised that about an hour
later, there was an alleged incident on the workroom floor . . . where
[complainant] alleged that [the letter carrier] made a threatening and
intimidating comment to [complainant],� and that complainant �mentioned
the incident to the other supervisors and to the shop steward.�
As an initial matter, we find that the agency has not accurately
characterized complainant's complaint. Rather than the two claims stated
by the agency as referenced above, a fair reading of the record indicates
that complainant claimed that she was harassed when:
(1) on March 25, 2005, a letter carrier used the word �nigger� in
telling a joke on the facility's loading dock (which was reported to
complainant);
(2) on March 29, 2005 the Postmaster stated to complainant that using
the �n� word was no big deal because the carrier was telling a joke,
and that �[i]f I say you're a nigger and I can't stand your black ass
. . . that would be different,�-and then repeated the statement using
complainant's name; and
(3) in an April 6, 2005 meeting the Postmaster stated to the letter
carrier referred to in claim (1) that �[i]f it were up to others, you
would be out of here,� and then turned to complainant and said �right
Judi?� As a result of the Postmaster's April 6, 2005 statement to the
offending letter carrier, the letter carrier confronted and threatened
complainant that same day.
Upon review of complainant's harassment complaint, as properly defined
above, the Commission finds that the complaint was improperly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1). A single incident or group of
isolated incidents is usually insufficient to state a claim of harassment.
See James v. Department of Health and Human Services, EEOC Request
No. 05940327 (September 20, 1994). However, the Commission has found
that under certain circumstances a limited number of racial epithets
or slurs may constitute harassment based on race under Title VII.
See Brooks v. Department of the Navy, EEOC Request No. 05950484 (1996).
Here, complainant was repeatedly subjected to the use of the racial
epithet �nigger,� first as a third party recipient, and then twice by
her supervisor (once directed at her personally) - who each time coupled
the epithet with an additional racial slur. Use of such racial epithets
and slurs "dredge[s] up the entire history of racial discrimination
in this country." Id., quoting Bailey v Binyon, 583 F. Supp.923, 925
(N.D. Ill. 1984). In this situation, complainant's supervisor not only
failed to take the required prompt and corrective action when complainant
approached him about the initial incident, he also further exacerbated
the situation. We therefore determine that the incidents described by
complainant, which included her subjection to the repeated use of the
racial epithet �nigger,� were sufficiently severe to alter the conditions
of her employment and state a claim of harassment. See Cobb v. Department
of the Treasury, Request No. 05970077 (March 13, 1997).
Accordingly, the agency's decision to dismiss complainant's complaint
is REVERSED. The complaint, as defined herein, is REMANDED 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, as redefined herein,
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 (K0501)
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 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 (M0701)
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 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 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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 7, 2006
__________________
Date