[Redacted], Andera P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionOct 13, 2021Appeal No. 2021004112 (E.E.O.C. Oct. 13, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Andera P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004112 Agency No. 4G-330-0133-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 17, 2021, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as a City Carrier Assistant in Coral Gables, Florida. Complainant initiated contact with an EEO Counselor on February 4, 2021. On May 19, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female and pregnancy), religion (Christian), color (Black), and disability (post-partum depression) when: 1. In or around January 2020, while Complainant was pregnant, the Station Manager (SM) handed her a job application for Burger King; 2. In or around January 2020, while Complainant was pregnant, SM asked 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021004112 2 Complainant, “Do you live at home alone? Are you a single mom?”; 3. On August 26, 2020, on Complainant’s second day back from maternity leave, the Head Supervisor (HS) yelled at her, “Maybe if you lose weight you could pick up some speed on your route;” 4. On September 1, 2020, HS yelled at Complainant in front of the entire staff on duty, “Look at her, she has all those kids, and look how she acts;” 5. On September 1, 2020, HS followed closely behind Complainant and yelled at her, “Just quit, you need to quit, why are you here?”; 6. On September 1, 2020, when Complainant complained about HS’s behavior to SM, SM told her, “All you need to do is keep your mouth closed, come to work, get your assignment and return back on time;” 7. On or about November 25, 2020, Complainant was issued a seven-day suspension for unsatisfactory attendance by her supervisor (S1); 8. On March 21, 2021, when Complainant was questioned by HS about her attendance, HS became upset and said to her, “Next time do not touch nothing on my desk! I need you to sign your 3971 (call out form). If not, I’m going to write you up for not following a direct order.”2 On June 17, 2021, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact and pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency reasoned that Complainant did not contact an EEO Counselor within 45 days of the issues alleged to be discriminatory in (1) through (7). The Agency found that Complainant did not allege a series of ongoing and related acts that should be considered one claim, noting that issue (3) occurred seven months after issues (1) and (2). The Agency found that issue (8) failed to state a claim. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that her hostile work environment claim, alleging ongoing harassment since January 2020, was timely. Complainant also contends that she was aggrieved. Complainant requests that the Commission reverse the Agency’s decision and remand the matter to the Agency for an investigation. The Agency opposes Complainant’s appeal.3 2 The allegations have been slightly rephrased from the Agency’s decision to more accurately reflect Complainant’s EEO complaint. 3 On August 3, 2021, an EEO Services Analyst with the Agency's National EEO Investigative Services Office submitted a statement on behalf of the Agency opposing appeal. According to the record, the same EEO Services Analyst signed the Agency’s June 17, 2021, decision dismissing Complainant’s complaint. 2021004112 3 ANALYSIS AND FINDINGS The Agency dismissed allegations (1) through (7) for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. We find that the Agency improperly dismissed these issues for untimely EEO Counselor contact. A fair reading of Complainant’s formal complaint and pre-complaint documents reveals that Complainant is alleging an ongoing hostile work environment starting in January 2020 and continuing through March 2021. According to the EEO Counselor’s report, Complainant stated that she had been subjected to verbal harassment by her supervisors on a daily basis, including on February 3, 2021, when S1 told her that she needed to lose weight so she could be more productive on her route and when S1 shared information about Complainant’s attendance with a coworker. The Agency cited the seven months between issues (1) and (2) and issue (3) to support its conclusion that the alleged events were not ongoing and related, but we note that the record reflects that Complainant was on maternity leave for some of this time. The Commission has stated that “[b]ecause the incidents that make up a hostile work environment claim constitute one unlawful employment practice, the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (revised July 21, 2005) (citing Nat’l Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002)). We find that Complainant’s overall hostile work environment claim starting in January 2020 and continuing through March 2021, was timely raised with the EEO Counselor on February 4, 2021. On February 13, 2018, the Director of EEOC's Office of Federal Operations (OFO) issued a memorandum to all Federal Sector EEO Directors and officials concerning the neutrality of EEO Directors and staff. OFO advised that some EEO Directors, officials, and staff routinely sign and submit appellate briefs to OFO on behalf of their agencies in the form of appellate briefs, letter briefs, and cover letters that ask the Commission to uphold a final agency action or final agency decision. OFO reminded EEO Directors and officials that this advocacy on behalf of their agencies violates both the letter and spirit of EEOC regulations and directives, which stress that an effective EEO program must be impartial, both in appearance and in existence and reflect EEOC's endeavor to keep the advocacy function out of federal sector EEO offices due to their unique obligations and responsibilities. OFO advised EEO Directors and officials that it is crucial that they and their staff refrain from advocating or defending, on behalf of their agency, regarding a federal sector EEO complaint before the Commission. The Agency is advised that its advocacy briefs must be done by an advocacy arm thereof, e.g., its Office of General Counsel. 2021004112 4 Further, we find that the Agency improperly dismissed issue (8) for failure to state a claim. As stated above, Complainant is alleging an ongoing hostile work environment claim. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. 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 a 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. In the instant matter, Complainant is alleging that she was subjected to an ongoing hostile work environment, including verbal harassment regarding her family, pregnancy, weight, working speed, and attendance, a suspension regarding her attendance, and the threat of discipline. Reviewing these matters collectively, we find that these matters are sufficiently severe or pervasive to set forth an actionable claim of harassment. For the reasons stated above, we find that Complainant’s complaint was improperly dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1) and 29 C.F.R. § 1614.107(a)(2). We caution the Agency that, on remand, it should avoid fragmenting Complainant’s overall hostile work environment claim in a piecemeal manner. See Felisha A. v. Dep’t of Transp., EEOC Appeal No. 0120140625 (June 2, 2016). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. ORDER (E0618) 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 was issued. 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 was issued, 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 2021004112 5 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2021004112 6 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021004112 7 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 13, 2021 Date Copy with citationCopy as parenthetical citation