01a50908
02-04-2005
Sally Templin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sally Templin v. United States Postal Service
01A50908
02-04-05
.
Sally Templin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50908
Agency No. 4F-920-0192-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision, 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. In her complaint, complainant alleged
that she was subjected to discrimination and a hostile work environment
on the basis of sex (female) when, on July 10, 2004, a carrier (C-1)
threatened her by saying, �I'm going to shove my fist down your fucking
throat,� and management failed to take any corrective action.
On September 22, 2004, the agency dismissed complainant's complaint,
finding that complainant failed to show that she suffered a harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Specifically, the agency reasoned that complainant
failed to �allege an unresolved personal injury as a result of an alleged
illegal discriminatory act.�
On appeal, complainant contends, among other things, that the agency
erred in dismissing her claim in that the factual allegations support
the existence of a hostile work environment based upon her sex, and the
agency was clearly aware of the harassment. She further contends that
she clearly meets the standing requirement, as C-1's conduct toward her
was �sufficiently severe and pervasive,� and that she is not required to
prove that she in fact sustained harm. She maintains that, even assuming
that she did have to prove tangible harm, C-1's conduct forced her to
work in an intimidating environment. Finally, complainant asserts that
the EEO Counselor failed to include the basis of retaliation as part of
her claim of discrimination.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim. 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. 29 C.F.R. �� 1614.103, 106(a).
Where a complaint does not challenge an agency action or inaction
regarding a specific term, condition or privilege of employment, a
claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to the
complainant, determine whether they are sufficient to state a claim. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Applying these principles to the case before us, we find that the
agency improperly dismissed complainant's complaint. Although this
claim has been defined as only a single incident, we find that it is
sufficiently severe to constitute an actionable claim of harassment.
In reaching this conclusion, we note that we have evaluated the conduct
in question from the standpoint of a reasonable person. See Highlander
v. K.F.C. National Management Co., 805 F.2d 644 (6th Cir. 1986).
We further note that, to the extent complainant wishes to add reprisal
as a basis of discrimination, complainants are given liberal latitude to
clarify the bases of discrimination in their charges, and to add bases
of discrimination after filing their charges. Dragos v. USPS, EEOC
Request No. 05940563 (Jan. 19, 1995) (citing Sanchez v. Standard Brands,
Inc., 431 F.2d 455 (5th Cir. 1970)). Accordingly, complainant should
be allowed to add reprisal as one of her basis if she wishes to do so.
For the reasons set forth above, we reverse the agency's dismissal of
complainant's complaint, and we remand the complaint to the agency for
further processing, as specified in the order below.
ORDER (E0900)
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 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 (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 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 (M0701)
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
____02-04-05______________
Date