0120122792
12-07-2012
Lisa G. Hester, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Lisa G. Hester,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120122792
Agency No. 4C-400-0022-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 1, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk - Part-Time Flexible Grade Level 6, performing duties as a "Window Clerk," at the Agency's Oak Grove Office facility in Oak Grove, Kentucky.
On April 30, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of her sex (female) and age (51) when:
1. On June 28, 2011, the Postmaster blocked her transfer when he refused to sign the paperwork to allow Complainant to finalize her transfer to a new location;
2. On June 1 and July 2, 2011, management denied her requests for Leave without Pay (LWOP); and
3. On December 27, 2011, Complainant was notified that she was ineligible to reapply for reinstatement because she was not an employee and denied her request for documentation that she was still eligible to compete, as of December 2011.
Further, and according to the EEO Specialist's Report, when Complainant contacted the EEO Counselor on January 17, 2012, she alleged discrimination on four bases: sex, age, disability and reprisal for her prior protected EEO activity. Similarly, in its April 16, 2012 Notice of Right to File Formal EEO Complaint, the Agency stated "in this matter, [Complainant] claim[s] . . . discrimination against [her] based on sex, age, physical disability and retaliation prior EEO activity" when, on December 27, 2011, she was "notified that she was ineligible to apply for a reassignment to include all request for reassignment to the North Florida District, denied approved Leave Without Pay to accommodate [her] absence while looking for a postal position, and [Complainant] state[s] on or about June 10, 2011, [she was] forced to resign from the Postal Service."
The pertinent information shows that Complainant had been employed with the Agency for more than 18 years. Our records indicate that she had prior EEO activity that pertained to her request for reasonable accommodation and assignment, at a different postal facility. In 2007, she filed an EEO complaint against the Postmaster, who is also the named official in this complaint. Her 2007 EEO complaint was settled by an agreement in 2008 and the Agency agreed to provide later training to the managers, as part of the claim resolution.
The record also shows that the Agency reassigned Complainant's husband, who worked for the Agency, to North Florida. Complainant states that this meant that they both would have to relocate. Complainant sought a hardship transfer to North Florida. She applied for a transfer. Complainant identified a possible position, but her transfer required that the Oak Grove Postmaster sign the paperwork. The Postmaster blocked her transfer by not authorizing her PS Form 3971, Request for or Notification of Absence to take LWOP for an extended time to look for another position with the Postal Service. Had the Postmaster granted her request for LWOP, she would have remained on the payroll.
Instead, the Postmaster requested that Complainant submit a letter of resignation. On June 17, 2011, she wrote the requested resignation letter. She included, within her resignation letter, her request that she be allowed to take LWOP. That letter of resignation also stated that Complainant preferred to remain with the Postal Service and did not want to resign.
On July 1, 2011, Complainant was informed by management at the Office to which she had applied that the "Postmaster at Oak Grove would not agree to allow her to take Leave without Pay" and denied the request for a required "PS Form 1324." On July 5, 2011, Complainant was told by the same receiving North Florida official that Complainant "would not be getting a job," meaning that her request for a transfer had been denied. The official asked Complainant if she applied for another position that the official had earlier suggested to Complainant. Complainant told the official that she had not applied yet. On July 13, 2011, Complainant received her separation papers.
On August 2, 2011, Complainant applied for a Rural Route Carrier position. That same day she received a USPS Assessment Invitation. The next day, August 3, 2011, she received an Appointment Confirmation. On August 5, 2011, she received the USPS Assessment Results. Subsequently, she applied for several other positions.
Then, on November 13, 2011, Complainant received a letter, from the USPS Law Department Employment & Labor Law Office, informing her "that Post Office records indicate that Complainant was a permanent rehabilitation or limited duty employee who was subjected to the NRP National Reassessment Program." It was then that she learned that her name was on the Agency's disabled list. The letter informed her that she may have rights regarding an EEOC Class Action which involves, in part, pending claims of a hostile workplace environment for class members. Meanwhile, the record indicates that management was engaged in communications and emails circulating regarding Complainant's employment status and history.
On December 19, 2011, Complainant received a letter from the District Complement Coordinator for Jacksonville, Florida informing her that she was being considered for reassignment to two offices. One of the potential appointments was in Niceville, Florida as a City Carrier 2. The other opportunity was in Destin, Florida as a City Carrier. Complainant also received other acknowledgements that she was under consideration for four other locations to which she had applied. She had also received repeated assurances that she had reinstatement rights and that the paperwork would eventually be worked out to permit a transfer.
On December 27, 2011, the Agency issued Complainant an electronic notice that it deemed her ineligible to apply for any reassignment to North Florida. The email stated that Complainant was ineligible because she was "no longer employed by the Postal Service." She was not appointed to either of the Niceville or the Destin, Florida position. Prior to that time, she had not been summarily rejected by any of the receiving offices to which she was applying.
The Agency eventually reappointed Complainant on April 24, 2012 to the "GBR-Navarre Branch" as a Rural Carrier Associate, Grade Level 5. She was assigned to five-day heavy duty rural route. The record suggests that Complainant lost pay, her 18-year seniority, her right to accrue annual and sick leave, and incurred costs for her payoff of her TSP retirement account.
The Agency dismissed the complaint for two reasons: 1) untimely EEO contact and 2) a failure to state a claim.
The Agency concluded that Complainant should have been aware of the potential discrimination by no later than July 2, 2011, but she did not initiate EEO contact until January 17, 2012, which was beyond the 45-day limitation period. The Agency reasoned that she was aware that the Postmaster denied her requests for leave and had not signed the paperwork necessary for Complainant to avail herself of a transfer.
In addition, the Agency noted that the EEO poster is on display and Complainant provided no evidence that she was unaware of the time limit.
The Agency dismissed claim #3 for failure to state a claim because Complainant did not indicate that she was subjected to any adverse action or was otherwise harmed.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claims (1) and (2)
Untimely EEO Contact
EEOC Regulation 29 C.F.R.1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event or the date that the aggrieved person knew or reasonably should known of the discriminatory event. The Commission has adopted a "reasonable suspicion" standard to determine when the 45-day limitation period is triggered.
The record discloses that the alleged discriminatory event described in claim (1) occurred on June 28, 2011 when the Postmaster refused to sign the necessary paperwork for her transfer. The record discloses that the alleged discriminatory event described in claim (2) occurred on June 1, 2011 and on July 2, 2011, when the Postmaster denied her request for LWOP. On appeal, however, Complainant presented persuasive arguments that she was not aware that she was discriminated against or would be harmed by his refusal to sign. Complainant apparently incorrectly believed that she remained under active consideration for several positions and a hardship transfer, and it was just a matter of time before all of the appropriate paperwork was submitted.
In this case, the Agency argues that the denials of her requests were evident by July 2, 2011 and that date triggers her obligation to contact an EEO counselor. Complainant, on the other hand, asserts that she did not realize that she had been the victim of discrimination until December 27, 2011 when the Agency told her that she had no reinstatement rights because it considered her ineligible to apply because she was no longer an employee.
Further, the record shows that she did not know in July of 2011 that the Agency regarded her as an individual with a disability, as evidenced by the placement of her name on the NRP list. The record shows that she did not know prior to November of 2011 that the Agency's actions were associated with her placement on a list.
Even if she was put on notice in July of 2011 of the refusal to sign the papers or authorize leave, she made timely EEO contact for two of the challenged actions (declaring her ineligible to reapply for appointment and barring her appointment to Niceville). These new incidents appear to be part of the continuing alleged pattern of discrimination and retaliatory harassment.
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992))). The Agency has failed to meet its burden in this case of establishing that Complainant's EEO counseling contact was untimely made.
Claim (3)
Failure 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 race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, 1614.106(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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant's claim is that management, particularly the Postmaster, blocked her efforts to obtain a transfer, forced her to resign and declared her ineligible to reapply or be reappointed, because of her sex, age, perceived disability and retaliation for her prior EEOC Case #4C-400-0075-07. This is sufficient to state of claim of discrimination and retaliatory harassment.
The record shows that Complainant was rehired, but at a lower grade, with more stringent job duties and a loss of her seniority.
Further, the record shows that the decision-makers were aware of Complainant's prior EEO activity and management refused to mediate this action. The Agency argues that this simple delay in reinstating Complainant was based on a view that Complainant was not eligible for a transfer because Complainant was not considered an employee. The Postmaster denied her request for leave without pay (which would have allowed her to continue on the rolls without a break in service) ostensibly because he had no replacement. The Agency's articulated reason for its action is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under the ADEA or Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
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. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. In this case, Complainant has identified inaction regarding her request for a transfer and the Agency's decision that ruled her "ineligible" to even apply for reappointment.
In addition, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
A fair reading of Complainant's EEO complaint, as well as the related EEO counseling report, and the Notice of Right to File reveals that Complainant provided examples of incidents to support her claim of an ongoing retaliatory hostile work environment. Complainant stated that although she was selected to receive a transfer, her supervisor blocked it by not signing the paperwork and not allowing her to take extended leave which would have kept her on the rolls and preserved her seniority. The Agency clearly regarded Complainant as an individual with a disability because it notified her that her name was placed on its list as a potential class member in a disability-related class action. Thereafter, despite the fact that she received notices that she was under serious consideration for selection to two of her desired positions, the Agency halted its consideration and blocked her reappointment. She alleged that the denials were retaliatory. Moreover, the record shows Complainant suffered harm in the form of loss of seniority, loss of grade, loss of terms and condition and the benefits to which she was entitled before she was forced to resign.
Reviewing the alleged incidents collectively and applying the above-described legal principles, we find that Complainant has set forth an actionable claim of a pattern of discrimination and retaliatory harassment that requires investigation and further processing. Looking at Complainant's allegations in their totality and in the light most favorable to her, we find that she has alleged that she suffered 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).
Accordingly, we find that Complainant's complaint was improperly dismissed. We REVERSE the Agency's final decision dismissing Complainant's complaint; and we REMAND the complaint to the Agency for further processing in accordance with the Order below.
ORDER
The Agency is ordered to process the claims 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 (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
December 7, 2012
__________________
Date
2
0120122792
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122792