Michelle A. Webb, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 13, 2000
01994593 (E.E.O.C. Dec. 13, 2000)

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.