Leslie R. Lewis, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 8, 2009
0120091460 (E.E.O.C. May. 8, 2009)

0120091460

05-08-2009

Leslie R. Lewis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Leslie R. Lewis,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091460

Agency No. 1E802000109

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated January 27, 2009, 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. Upon

review, the Commission finds that complainant's complaint was improperly

At the time of the events at issue, complainant was employed by the

agency as a Mail Handler at the Bulk Mail Center in Denver, Colorado.

In an EEO complaint filed on January 12, 2009, complainant alleged that

she was discriminated against on the basis of sex (female) when she was

subjected to sexual harassment by a supervisor. The agency dismissed

the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to

state a claim. The instant appeal followed.

An examination of the formal complaint and related EEO counseling report

reveals that complainant alleged that on August 13, 2008, a supervisor

asked her out on a date while they were working together. She asserts she

declined and told him she was married, but he again asked her out and she

again declined. Complainant alleged that the next day she talked to the

supervisor about sexual harassment, and he responded that "it is harder

to get rid of a supervisor than it is a mailhandler." Complainant stated

that for the next few days she tried to avoid the supervisor but ran

into him on August 16, 2008, when she was clocking out. When she tried

to ignore his greeting, he responded that if she was not talking to him,

he would not talk to her. Complainant said she responded, "like I care,"

to which he said, "you better care." Several weeks later, complainant

reported the supervisor's actions to the Acting Plant Manager, and the

supervisor was apparently instructed to stay away from her. However,

on September 3, 2008, complainant alleged the supervisor approached

her at work from behind and said, "turn around and let me see your

beautiful smile." Complainant apparently reported this to management,

and the EEO counselor's report indicated that the supevisor was placed

off-duty on September 18, pending an investigation into complainant's

allegations of sexual harassment. The investigation was on-going at

the time the EEO counselor's report was issued on December 29, 2008.

In its dismissal decision, the agency represents that on September 30,

2008, the supervisor told the investigators that he and complainant had

had sex ten times and that he had videotaped it.

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall

accept a complaint from an aggrieved employee or applicant for employment

who believes that he or she has been discriminated against by that agency

because of race, color, religion, sex, national origin, age or disabling

condition. 29 C.F.R. �� 1614.103, .106(a). 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. Diaz v. Dep't of the

Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant

cannot establish that s/he is aggrieved, the agency shall dismiss a

complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).

The Commission has held that where, as here, a complaint does not

challenge an agency action or inaction regarding a specific term,

condition, or privilege of employment, the claim of harassment may

survive if it alleges conduct that is sufficiently severe or pervasive

to alter the conditions of the complainant's employment. See Harris

v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The Commission finds

that complainant's allegations, especially concerning a supervisor,

are sufficient to state a viable claim of harassment. Accordingly,

complainant has alleged an injury or harm to a term, condition,

or privilege of employment for which there is a remedy. See Diaz

v. Department of the Air Force, EEOC Request No. 05931049 (April 21,

1994).

The agency's final decision dismissing complainant's complaint is

REVERSED. The complaint is hereby REMANDED to the agency for further

processing in accordance with this decision and the Order below.

ORDER (E0408)

The agency is ordered to process the remanded claim (ongoing sexual

harassment) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (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 (R0408)

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 (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

May 8, 2009

__________________

Date

2

0120091460

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120091460