0120092363
09-29-2009
Lucy M. Deiters, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lucy M. Deiters,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092363
Agency No. 4H370004209
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 15, 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.
In her complaint, complainant alleged that she was subjected to
discriminatory harassment from August 2008 through February 2009, on
the bases of race (white) and reprisal for prior protected EEO activity
under Title VII. In support of her claim of harassment, complainant
alleged the following events occurred:
1. On August 12, 2008, a co-worker (CW1) publicly threatened to file a
harassment against anyone that said anything about her shirts.
2. On August 18, 2008, CW1 wore a black on white shirt that read "You
See Me - Hi Hater" and on the reverse read "Bye Hater." She verbally
made sure that complainant could read the shirt and proceeded to say
"Hi Hater; Bye Hater" in a nasty tone.
3. On January 12, 2009, CW1 made a racial slur when she stated that all
white women are liars.
4. On January 21, 2009, CW1 wore a racial/political shirt and attempted
to hit complainant and others with a tug.
5. On January 25, 2009, CW1 wore a new shirt, which read "American by
Abduction," and stated that she wore the shirt due to racists in the
building.
6. On January 27, 2009, CW1 loudly exclaimed the need for a "Code Black"
day at the Post Office and purposely put empty ergos into complainant's
MMP staging area.
7. On February 2, 2009, CW1 wore a racist "Do Not Bleach" shirt.
In addition, complainant was removed from the light-duty belt duty.
8. On February 7, 2009, another co-worker (CW2) called complainant a
"fucking baby."
The agency dismissed the claim of harassment finding that the alleged
incidents were not sufficiently severe or pervasive enough to state
a claim. As such, the agency dismissed the matter pursuant to 29
C.F.R. � 1614.107(a)(1). In addition, the agency noted that complainant
contacted the EEO office on July 29, 2008 regarding a racially hostile
work environment created by CW1's shirts. Complainant withdrew the
matter and did not pursue her claim of harassment. As such, the agency
also dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for stating the same claim as her prior contact.
Complainant appealed the dismissal. On appeal, complainant indicated
that the events alleged in the instant complaint are not identical to
those raised in the prior contact. Further, complainant argued that
the events were sufficiently severe to state a claim of harassment.
As such, complainant requested that the Commission reverse the agency's
final decision dismissing the complaint.
Dismissal for Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails 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,
.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).
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. 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.
Upon review of the record, we find that complainant has alleged sufficient
facts to state a claim of harassment. In addition to the statements made
and shirts worn by CW1 and CW2, complainant also alleged that she was
taken off of light duty work. Accordingly, we find that complainant
alleged that the harassment altered the conditions of her employment.
Accordingly, we find that complainant's claim of harassment is actionable.
Dismissal for Stating the Same Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The record indicates that complainant contact the EEO office on July 29,
2008, alleging discrimination when CW1 wore a racially offensive shirt
on June 23, 2008. Complainant withdrew that complaint. We note that
the instant complaint involves events beginning August 2008. Therefore,
the events alleged in the instant complaint are not the same as those
raised in the prior EEO contact. As such, we find that the agency
improperly dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1)
for stating the same claim as a prior complaint.
CONCLUSION
Therefore, we REVERSE the agency's final decision dismissing the complaint
and REMAND the complaint for further 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 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
September 29, 2009
__________________
Date
2
0120092363
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092363