Maureen D. Wiley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 10, 2009
0120091627 (E.E.O.C. Jun. 10, 2009)

0120091627

06-10-2009

Maureen D. Wiley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Maureen D. Wiley,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091627

Agency No. 4F926001709

DECISION

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

decision dated February 2, 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.

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

agency as a Supervisor of Customer Services at the Anaheim, California

Post Office. In a complaint dated January 17, 2009, complainant alleged

that she was subjected to discriminatory harassment on the bases of

race (African-American)/color (black), and sex (female). Specifically,

complainant alleged that following leave due to a death in the family,

she was instructed by the Anaheim Postmaster to report for work at the

Sunkist Station. Complainant stated that on October 15, 2008, on the

first day that she reported to the Sunkist Station, she was brought

into the office by the Manager of Customer Services (Hispanic male)

and told to go home and take leave because he did not have work for

her to do and considered her a problem. The next day, on October 16,

2008, complainant again returned to the Sunkist Station ready to report

for work. When she was sitting in her car waiting for her shift to

begin she asserted that the Manager approached her and, in a hostile and

agitated manner, told her to leave and report to the Main Post Office.

When complainant asserted that the Postmaster had told her to report

to Sunkist, the Manager allegedly threatened her job and told her he

would call postal the inspectors and have her removed from the facility.

Complainant alleged this occurred in front of the employees she had to

supervise and she was both threatened and humiliated. In its final

decision, the agency dismissed complainant's harassment/hostile work

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

to state a claim. Complainant filed the instant appeal.

As an initial matter, we note that the agency also dismissed what it

characterized as a separate claim-concerning complainant being told on

October 8, 2008, that the Manager did not want her in his station-for

failure to seek EEO counseling in a timely manner because complainant

did not raise the matter until she filed her formal complaint on January

17, 2009. However, a fair reading of the complaint reveals complainant

has, in fact, alleged a single claim of ongoing harassment/hostile

work environment spanning a number of incidents in October 2008,

including those on October 8, 15 and 16. 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).

Such is the case here, so the agency's dismissal of a portion of the

complaint on timeliness grounds is reversed.

With regard to the agency's dismissal of the entire complaint for failure

to state a claim, the regulations set forth at 29 C.F.R. �� 1614.103

and .106(a) provide that 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.

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).

Where, as here, a complainant has not alleged disparate treatment

regarding a specific term, condition, or privilege of employment,

the Commission will examine whether a complainant's allegations,

when considered together and assumed to be true, are sufficient to

state a hostile or abusive work environment claim. See Estate of

Routson v. National Aeronautics and Space Administration, EEOC Request

No. 05970388 (February 26, 1999). Even if harassing conduct produces

no tangible effects, a complainant may assert a cause of action if the

discriminatory conduct was so severe or pervasive that it created a work

environment abusive to complainant because of her race, gender, religion,

national origin, age or disability. Rideout v. Department of the Army,

EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift

Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration

denied EEOC Request No. 05970995 (May 20, 1999). In the instant case,

we conclude that the facts as alleged by complainant are sufficient to

assert a direct and personal deprivation sufficient to render complainant

aggrieved for the purposes of Title VII.

Accordingly, the agency dismissal of the complaint is reversed and the

complaint is remanded to the agency for further processing in accordance

with the following Order.

ORDER (E0408)

The agency is ordered to process the remanded claim (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 (K0408)

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 19848,

Washington, D.C. 20036. 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

June 10, 2009

__________________

Date

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0120091627

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091627