01994593
12-13-2000
Michelle A. Webb, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michelle A. Webb, )
Complainant, )
)
v. ) Appeal No. 01994593
) Agency No. 1-I-642-0021-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On May 12, 1999, complainant filed a timely appeal with this Commission
from the agency's final decision dismissing her complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
On March 19, 1999, complainant contacted an EEO Counselor regarding her
claim of discrimination. When counseling was unsuccessful, complainant
filed a formal complaint on April 13, 1999. In her complaint, complainant
alleged that she was subjected to sexual harassment and harassment on
the bases of race, sex, and disability when:
Sometime between December 29, 1999, and January 5, 1999, two supervisors
made remarks containing a sexual reference which made complainant
uncomfortable: �So Ramona likes you, you'd better watch out.� and �Yah,
Judy might get mad;�
On January 18, 1999, a co-worker made a remark containing a sexual
reference which made complainant feel uncomfortable: �So you are
Chauncey tonight� and �Yah, but she's a lot better to look at than
Chauncey any day;�
On February 16, 1999, a supervisor made a remark containing a sexual
reference which made complainant feel uncomfortable: �Come and sit on
my lap and I'll make you feel better;�
On March 2, 1999, a supervisor made a remark containing a sexual
reference which made complainant feel uncomfortable: �Yah, my heart
got injured years ago, and my ex-wife left me and anytime the weather
changes my heart hurts;� and,
On March 18, 1999, a supervisor made a remark to a co-worker containing
a sexual reference which made complainant feel uncomfortable: �When
Michelle comes back to work, the shit is going to hit the fan.�
The agency dismissed the first two claims because complainant failed to
bring them to the attention of an EEO counselor within the 45-day time
limitation, finding that complainant had constructive knowledge of this
time limitation by virtue of EEO posters. See 29 C.F.R. S 1614.105(a)(1).
The agency then dismissed the remaining claims for failure to state a
claim, finding that complainant failed to show how she was �aggrieved�
in a term or condition of employment by these remarks. See 29 C.F.R. S
1614.107(a)(1)).
On appeal, complainant argues that the first two incidents were not
meant as claims, but as background information to illustrate a pattern of
harassment and hostile work environment, and that the agency's dismissal
was improper. Regarding the other three claims, complainant argues
that her claim is one of sexual harassment, and that these remarks,
taken together, made her feel uncomfortable, created a hostile work
environment, and interfered with her ability to perform her work.
Complainant also argues that the EEO counseling was inadequate, and that
the agency failed to address her claim that the agency failed to provide
her with a reasonable accommodation for her disability.<2> The agency
did not submit a response to the appeal.
We find that complainant clearly intended to raise a claim of
harassment.<3> 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, where a complaint
does not challenge an agency action or inaction regarding a specific
term, condition or privilege of employment, a claim of harassment
may nonetheless be actionable if the conduct at issue is shown to be
sufficiently severe or pervasive as to alter the conditions of the
complainant's employment.
After careful review, we find that the agency improperly fragmented
and dismissed the claims in the instant complaint. Instead, we view
all of the incidents identified by complainant as a single claim of
harassment, and find that, taken altogether, they are sufficiently
severe and pervasive as to have altered the conditions of complainant's
employment. Specifically, complainant contends that the identified
remarks had strong sexual content and made her uncomfortable. Moreover,
complainant indicates that the remarks were made by both supervisors
and co-workers, all individuals she had to work closely with on a
daily basis, and that this affected her ability to perform her work.
Based on these statements, we find that complainant has set forth an
actionable claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Finally, we note complainant's contention that the agency failed to
address her disability claim based on failure to accommodate. Upon
review, we find that this issue is not referenced in the counselor's
report, but that it is fully described in a statement attached to the
formal complaint. Accordingly, because complainant filed her complaint
within 45 days of the identified date of this incident (March 2, 1998),
we find that this constitutes timely EEO contact, and advise the agency
that it must provide EEO counseling to complainant regarding this matter.
See EEOC Management Directive (MD) 110, as revised, November 9, 1999.
Accordingly, we REVERSE the agency's decision on the instant complaint,
and REMAND the case back to the agency for processing as set forth in
the ORDER below.
ORDER
The agency is ordered to take the following actions:
1) Within fifteen (15) calendar days of the date this decision becomes
final, notify complainant of the opportunity to seek EEO counseling on
her claim of failure to accommodate;
2) Process the remanded claims (1)-(5) in accordance with 29 C.F.R. �
1614.108. The agency shall acknowledge to the complainant that it
has received the remanded claims (1)-(5) 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 notice to seek EEO counseling, 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 13, 2000
__________________
Date
1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 29 C.F.R. Part 1614 in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2Complainant's contention regarding inadequate EEO counseling is not
a matter properly before us, and we advise complainant to contact the
Director of the agency's EEO office with this concern. Furthermore,
regarding complainant's contention that the agency failed to address
her disability claim based on failure to accommodate, we find that
this issue is not referenced in the counselor's report, but that it
is fully described in a statement attached to the formal complaint.
Accordingly, because complainant filed her complaint within 45 days
of the identified date of this incident (March 2, 1998), we find that
this constitutes timely EEO contact, and advise the agency that it must
provide EEO counseling to complainant regarding this matter. See EEOC
Management Directive (MD) 110, as revised, November 9, 1999.
3In her statements, complainant appears to only be claiming sexual
harassment. However, because she also lists race, sex, and disability
as bases of harassment in her formal complaint, we will treat her claim
as one of sexual harassment as well as harassment based on race, sex,
and disability.