0120101452
07-22-2010
Laudria L. Agee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Laudria L. Agee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120101452
Agency No. 1H336000110
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 25, 2010, 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 Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her
to discrimination on the bases of race (Black), color (unspecified),
disability (unspecified back, neck, knee, and shoulder disabilities),
and reprisal for prior protected EEO activity under a statute that
remains unspecified in the record when:
1. Complainant's supervisor (S1) harassed her by yelling and screaming
at her, following her into the bathroom and questioning her about her
use of the bathroom, changing her schedule, and charging her with being
Absent Without Leave (AWOL);
2. On October 22, 2009, management controverted Complainant's Office of
Workers' Compensation Program (OWCP) claim;
3. Complainant was denied a reasonable accommodation;
4. S1 failed to secure Complainant's personal medical information; and
5. On an unspecified date, Complainant was notified that she had been
fired.
The Agency addressed only claims 1 and 2 but did not address claims 3, 4,
or 5. The Commission finds that claims 3, 4 and 5 are like or related to
matters that Complainant raised before the EEO Counselor. With regard
to claim 1, the Agency found that the actions complained of were not
sufficiently severe to state a claim of harassment. With regards to claim
2, the Agency found that the claim constituted a collateral attack on the
Department of Labor's OWCP program and hence failed to state a claim.
On appeal, Complainant reiterates the arguments she made before the
Agency, and the Agency requests that we affirm the FAD.
ANALYSIS AND FINDINGS
In its FAD, the Agency determined that the incidents described in claim
1 were not sufficiently severe or pervasive to create a hostile work
environment. Upon review, we find that the agency improperly addressed
the merits of complainant's complaint. In Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997), the Commission
stated that:
[a] complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant can prove no set of facts
in support of the claim which would entitle the complainant to relief.
Thus, a claim of harassment based on the complainant's race, color,
religion, sex, national origin, age, or disability, should not be
dismissed for failure to state a claim where the complainant has made
factual allegations which, when construed in the light most favorable to
the complainant, i.e., when considered together and treated as true, are
sufficient to state a claim . . . In addition, . . . when addressing the
merits of a hostile or abusive work environment claim, the trier of fact
must consider all relevant factors since no single factor is required
to prove a hostile or abusive work environment claim. . . . In order
to state a hostile or abusive work environment claim, a complainant must
allege facts which, if proven true, would indicate that the complainant
may have been subjected to harassment that was sufficiently severe or
pervasive to alter the conditions of his or her employment.
In the present case, complainant alleged that on an ongoing basis,
S1 was rude and repeatedly yelled and screamed at Complainant, that S1
followed her into the bathroom and commented on her use of the bathroom in
front of others, and that S1 charged Complainant with being AWOL, changed
Complainant's work schedule, and denied receiving forms that Complainant
sent her. In addition, Complainant alleged that S1 failed to secure her
confidential medical records, made Complainant work outside of her work
restrictions, and that Complainant was issued a notice of termination.
Taking her allegations in the light most favorable to Complainant, we
find that she states a claim of harassment. Consequently, the Agency's
dismissal of claim 1 was improper.
With regard to claim 2, the Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another proceeding. See Wills v. Department of Defense, EEOC Request
No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service,
EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States
Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper
forum for Complainant to have raised her challenges to the denial of
her OWCP claim was at that proceeding itself. We therefore find that
claim 2 fails to state a claim.
With regards to claims 3, 4, and 5, we find that a fair reading of
Complainant's Formal Complaint and subsequent amendments to her Complaint
indicate that she raised the three additional issues identified above.
The claims, however, were not addressed in the FAD. We therefore
AFFIRM the FAD in part and REVERSE in part and REMAND claims 1, 3, 4,
and 5 for additional processing in accordance with the ORDER below.
ORDER (E0408)
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 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 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
July 22, 2010
__________________
Date
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0120101452
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101452