0120091069
06-08-2009
Robin M. Ash, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robin M. Ash,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091069
Agency No. 4H-300-0131-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 2, 2008 final decision concerning
her equal employment opportunity (EEO) complaint alleging 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.
During the period at issue, complainant was employed as a Sales, Services
and Distribution Associate, PS-05, at the agency's Cornelia Post Office
in Cornelia, Georgia.
On February 6, 2008, complainant initiated EEO Counselor contact.
Efforts to resolve her concerns were unsuccessful.
On April 5, 2008, complainant filed the instant formal complaint, claiming
that she was the victim of unlawful employment discrimination on the
bases of sex (female) and in reprisal for prior protected activity.
The agency determined that complainant's formal complaint was comprised
of the following six claims:
1. on October 17, 2007, her supervisor slapped her on her butt;1
2. in December 2007, she was instructed to ride alone with the same
supervisor for 1.5 hours;
3. on January 16, 2008, her request to waive overtime was denied;
4. on January 23, 2008, she was denied the right to waive overtime on
her day off;
5. on an unspecified date, she was ordered to have a doctor's excuse
showing the location and time of her appointment; and
6. on February 18, 2008, she was harassed about her work performance.
On May 7, 2008, the agency issued a document titled "Partial
Acceptance/Partial Dismissal of EEO Formal Complaint - (Revised)."2
Therein, the agency accepted claims 3 - 4 for investigation. The agency
dismissed claims 1 - 2 on the grounds of untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2). The agency dismissed claims 5 -
6 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
On May 9, 2008, however, the agency issued a document titled "Partial
Acceptance/Partial Dismissal of EEO Formal Complaint - (Correction)."
Therein, the agency stated that the instant partial dismissal "supersedes
any and all previous correspondence involving Case No. 4H-300-0131-08
[emphasis in the original]." The agency again accepted for investigation
claims 3 - 4. The agency dismissed claims 1 - 2 on the grounds of
untimely EEO Counselor contact and claims 5 - 6 for failure to state a
claim.
At the conclusion of the investigation concerning claims 3 - 4,
complainant was provided with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. However, complainant
subsequently withdrew her request. Consequently, the agency issued a
final decision pursuant to 29 C.F.R. � 1614.110(b).
In its December 2, 2008 final decision, the agency dismissed claim 4
for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency nevertheless addressed claims 3 - 4 on the merits.
The agency found that complainant did not establish a prima facie case
of sex and reprisal discrimination. The agency further found that
assuming, arguendo, that complainant established a prima facie case
of sex and reprisal discrimination, management articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext.
The Officer-in-Charge (OIC) stated that in regard to claim 3, the Cornelia
Post Office was "extremely understaffed" at the time complainant was
required to work overtime on January 16, 2008. OIC further stated
that the only identified Clerk (C1) who was on the overtime desired
list (OTDL), worked approximately 9.38 hours. OIC stated that C1
and complainant were scheduled to work the window and to finish the
distribution of standard mail that had arrived that morning. OIC stated
that because C1 was the only one employee on OTDL and that she was
not CSBCS trained, there have been occasions when it was necessary to
require other employees to work overtime. OIC stated that according
to the agreement between the union and agency, "if there [are] not
sufficient people qualified on the OTDL then we can require the junior
full time to work overtime."
Complainant's supervisor (S1) stated that complainant was needed to
work overtime on January 16, 2008. Specifically, S1 stated "I had all
available qualified people working and due to our window of operation,
[complainant] was needed to get all the mail worked and distributed
to the carriers. We have to work at a faster pace in the mornings
getting all the mail work so that the carriers can get on the street to
deliver the mail and also cover the operation until close of business."
S1 stated that all qualified employees, including complainant, were
working on January 16, 2008.
Regarding claim 4, complainant claimed that she was not permitted to
waive overtime on January 23, 2008. The record reflects that complainant
was asked to work on January 23, 2008 because C1 requested leave for the
same day. The record further reflects that complainant volunteered to
work on January 23, 2008, her off day. In her affidavit, complainant
stated that S1 "attempted to make complainant stay an hour longer that
previously agreed and then required that complainant bring medical
documentation to substantiate the early leave on her day off."
S1 stated that because C1 requested leave for January 23, 2008, she
"did not have enough qualified employees without using [complainant]
to get the mail worked and the machines ran. I did however, allow her
to waive 3.58 hours and went home after the machines were finished.
[Complainant] told me on 2 occasions that she did not mind working
overtime to help out on the machines."
On appeal, complainant argues that her sexual harassment and hostile work
environment claims were timely filed with an EEO Counselor. Complainant
further argues that the agency "did not include instances of sexual
harassment set forth in Appellant's Formal Complaint of Discrimination."
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Therefore, after a review of the record in its entirety, including
consideration of all statements on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
concerning claims 3 - 4 because the preponderance of the evidence of
record does not establish that discrimination occurred.3
Claims 1 - 2 and 5 - 6
In its revised May 7, 2008 and corrected May 9, 2008 partial dismissals,
the agency dismissed claims 1 - 2 on the grounds of untimely EEO Counselor
contact. The agency also dismissed claims 5 and 6 for failure to state
a claim.
The agency improperly dismissed claims 1 -2 on the grounds of untimely
EEO Counselor contact. The record reflects that complainant initiated
EEO Counselor contact on February 6, 2008. The Commission finds that
"[b]ecause the incidents that make up a hostile work environment claim
collectively constitute one unlawful employment practice, the entire claim
is actionable, as long, as at least one incident 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 National Railroad Passenger Corp v. Morgan, 536 U.S. 101, 117
(2002)).
The record reflects that at least one of the incidents comprising
of complainant's sexual harassment and hostile work environment claim
occurred within the 45-day time period preceding to complainant's February
6, 2008 EEO Counselor contact. Specifically, complainant alleged that
in the instant complaint she was subjected to sexual harassment and a
hostile work environment from approximately March 2007 to the present.
Moreover, as noted above, complainant stated on appeal, that the agency
did not include alleged incidents of harassment that had been expressly
set forth in the formal complaint. Based on the foregoing, we find that
the agency improperly dismissed claims 1 - 2 on the grounds of untimely
EEO Counselor contact.
With respect to claims 5 - 6, we find that the agency improperly dismissed
these claims for failure to state a claim. Complainant claimed that
after she notified OIC that S1 subjected her to sexual harassment and
hostile work environment, S1 retaliated against her. Specifically,
complainant states that upon her return to work following an extended
absence due to surgery from October to early December 2007, S1 would come
to her machine and complain about her work performance; and instruct
her to ride with her alone to make deliveries. These matters state an
actionable claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Accordingly, we REVERSE the agency's partial dismissals of claims 1 - 2
and 5 - 6, defined herein as a harassment claim, and we REMAND this matter
to the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to process the remanded claims (sexual harassment
and harassment/hostile work environment) 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 (15)
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 acknowledgement 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 (K0501)
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,
D.C. 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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 8, 2009
__________________
Date
1 The record reflects that in her formal complaint, complainant further
stated that since March 2007, the supervisor began making sexually
impermissible comments on the workroom floor, such as "you don't need
a man. I have twin turbos." Complainant also claimed that the supervisor
repeated referred to her as a "bitch;" and that on one specific occasion
in October 2007, the supervisor telephoned complainant at her residence
after complainant's surgery, inquiring "hey bitch, I just called to see
how you were doing."
2 The record reflects that in its partial dismissals, the agency
incorrectly numbered complainant's six claims as claims 1 through 5 and
claim 7.
3 Because we affirm the agency's finding of no discrimination on the
merits for the reasons stated herein, we find it unnecessary to address
the disposition of claim 4 on procedural grounds (i.e., failure to state
a claim).
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0120091069
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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