Laura L. Cicco, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 31, 2009
0120090192 (E.E.O.C. Mar. 31, 2009)

0120090192

03-31-2009

Laura L. Cicco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Laura L. Cicco,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090192

Agency No. 1C-151-0028-08

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dated September 9, 2008, 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. In her complaint, complainant alleged that she was subjected

to discrimination on the bases of sex (female) and reprisal for prior

protected EEO activity from April 2006 to May 24, 2008.

The FAD dismissed the complaint for failure to timely contact an EEO

counselor. It reasoned that the last act of alleged discrimination

occurred in April 2008, and complainant did not initiate contact with

an EEO counselor until June 27, 2008, beyond the 45 calendar day time

limitation. The FAD also dismissed the complaint for failure to state

a claim. It reasoned that the complaint was vague and lacked specificity,

some claims did not involve complainant, and the complaint did not rise

to the level of actionable harassment.

At the time of her complaint, complainant was a mail handler. She became

an acting supervisor (204B) in April 2006, and returned to her regular

mail handler craft in November 2007. Complainant's complaint contains

scores of incidents over an approximately two year period. Complainant

alleged discrimination and hostile work environment based on sex and

reprisal when:

1. she was sexually harassed by T.P., a supervisor, during her 90 day

probationary period (from approximately November 28, 2005 through February

2006),

2. she was sexually harassed by J.H., an allied supervisor, in February

2006,

3. she was subjected to sex and other harassment by the plant manager

from April 2006 to January 2007,

4. a mail handler, who was previously terminated after threatening to

hit with baseball bat and shoot some managers, was allowed to return to

work in the second part 2006 by the plant manager (the mail handler was

then terminated again),

5. in late December 2006, lead acting manager T.A. sexually harassed

complainant's female supervisor K.Z. when he walked into the office and

screamed profanity in a jealous rage about K.Z. being with another man

and T.A. thought she was interested in him,

6. right after the above incident occurred, the mail section where

complainant and K.Z. worked (complainant as an acting supervisor) started

getting less staff resources, T.A. demanded they more closely supervise

the operation, standards were tightened; and on March 17, 2007, allied

lead manager M.H. worked against complainant by dictating ineffective

staffing location decisions, and continued to try to set her up to fail

as an acting supervisor,

7. effective April 5, 2007, K.Z. was reassigned and demoted and was

replaced by allied lead manager M.H.,

8. complainant's operation was monitored by the plant manager during

the week of April 19, 2007,

9. around this time M.H. and the lead manager of flats, M.C., tried to

set complainant up to fail by assigning insufficient staffing to her

mail section,

10. M.H. denied complainant's request for leave for Saturday, July 7,

2007, and accused her of fabricating her reason for the leave request,

11. M.H. told complainant that she could not have the weekend of September

22, 2007, off, and she would have to work one shift as a craft mail

handler,

12. while out of stress leave from September 15, 2007 to January 10,

2008, a series of actions occurred:

a. complainant received a notice to return to duty dated November 14,

2007, by M.H.,

b. complainant was released from her detail as an acting supervisor and

returned to the mail handler craft in November 2007 by M.H., and

c. complainant was sent a absence without leave (AWOL) letter dated

December 28, 2007, by the assistant to the lead manager of flats, L.M.,

13. when complainant was on her way to the agency medical unit on January

7, 2008, to give medical documentation clearing her to return to work,

M.C. demanded she tell him why she had been off work,

14. during the first week of complainant's return to work starting January

10, 2008, M.C. and the manager of Tour 3, B.U., closely monitored her,

15. M.C. denied complainant's request for a schedule change to make her

days off Good Friday March 3, 2008, and Easter Sunday, March 23, 2008,

instead she took annual leave,

16. on a day in April 2008, M.C. did not permit a supervisor to chat

with complainant while she was working on a machine,

17. complainant was not selected for the position of Supervisor Customer

Service, vacancy announcement E07073, by letter dated April 7, 2008,

18. by letter dated April 28, 2008, to the U.S. Department of Labor,

Office of Workers' Compensation Programs (OWCP), human resources

specialist R.C. controverted complainant's claim for OWCP,

19. complainant received a letter of warning dated May 2, 2008, by

A.P, the supervisor of distribution operations, tour 3, for not timely

reporting being injured,1 and

20. on May 24, 2008, complainant was told by female supervisor D.J. that

A.P. humiliated her by swinging his arm back like he was going to hit

her and yelling "this is how a white boy says it, fuck you asshole."2

An aggrieved person must seek EEO counseling within 45 days of the date

of the alleged discriminatory action, or in the case of a personnel

action, within 45 days of the effective date of the action. 29 C.F.R. �

1614.105(a)(1). Under 29 C.F.R. � 1614.105(a)(2), an agency shall

extend the 45 day time limit to initiate EEO counseling for reasons

considered sufficient by the agency or Commission. The Supreme Court

has held that a complainant alleging a hostile work environment will not

be time barred if all acts constituting the claim are part of the same

unlawful practice and at least one act falls within the filing period.

See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10,

2002). The Court further held, however, that "discrete discriminatory

acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges." Id. Finally, the Court held

that such untimely discrete acts may be used as background evidence in

support of a timely claim. Id.

Here, the only act falling within the filing period was complainant

being told on May 24, 2008, by supervisor D.J. that A.P. humiliated her

by swinging his arm back like he was going to hit her and yelling "this

is how a white boy says it, fuck you asshole." We find that this was not

part of the alleged hostile work environment claimed by complainant for

the following reasons. It was not directed at complainant, and she did

not witness the incident. It was an allegedly racial incident against

another, and complainant's claim of hostile work environment is based

on sex and reprisal. Finally, A.P.'s involvement in alleged hostile

work environment was isolated and minimal.

Nevertheless, we find that the agency should have extended the 45 day time

limit to accept claim 3 for investigation. Complainant contacted human

resources alleging claim 3 on or about January 24, 2007. On appeal,

complainant contends that when she initiated her action with the then

acting manager of human resources and the acting lead executive/district

manager, they told her she would receive a written finding. Complainant

writes that she was told she could file a EEO complaint after the agency

made its finding. Human resources conducted an investigation, and on

December 10, 2007, decided to take no further action. Complainant writes

she never received the written finding (and the record does not show she

was otherwise notified of it). The agency does not contest any of this.

Accordingly, we find that since complainant relied on the agency's advice,

the 45 day time limit should be extended.

The FAD also dismissed the complaint for failure to state a claim.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. The Court explained that an "objectively hostile or abusive

work environment [is created when] a reasonable person would find

[it] hostile or abusive" and the complainant subjectively perceives it

as such. Harris, supra at 21-22. Thus, not all claims of harassment

are actionable.

Complainant timely sought EEO counseling on claim 20. We find this

matter fails to state a claim. It was not directed at complainant and

she did not witness it. Also, it is not part of complainant's hostile

work environment claim as it was an alleged racial incident against

another, and complainant's hostile work environment claim is one of sex

and reprisal. We also find that this matter would not reasonably likely

deter complainant from seeking EEO counseling.

We now turn to claim 3. Complainant contended that the Plant Manager told

her he liked the way she walked and liked to watch her walk multiple

times, frequently and flirtatiously complimented her on her looks,

always noticed and complimented her whenever she changed her physical

appearance such as her hair, took her hand and rubbed his thumb on it

under her long sweater sleeve and flirtatiously told her she was wearing

the sweater for style, repeatedly asked her to wear a Santa hat during the

holiday season even though she told him she did not want too, mysteriously

asked her if she had a nose for trouble, and gave her unwanted attention.

We find this sufficient to state a claim of harassment.

As the remaining claims were untimely counseled, we need not rule on

whether they state a claim.

The FAD is modified.

ORDER

The agency is ordered to process claim 3, as defined above, in accordance

with 29 C.F.R. � 1614.108. The agency shall acknowledge to

the complainant that it has received the remanded claim 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 (K1208)

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 (M1208)

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 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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action in

an appropriate United States District Court within ninety (90) calendar

days from the date that you receive this decision on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

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

March 31, 2009

__________________

Date

1 Prior to the complaint, the letter of warning was reduced to a

discussion.

2 On appeal, complainant characterizes this matter as D.J. being

"racially profiled."

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0120090192

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090192