0120110445
04-26-2011
Sheila M. Allen, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Sheila M. Allen,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120110445
Agency No. 1G721001610
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 31, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of the events at issue, Complainant was employed as a Mail
Processing Clerk at the Agency's Little Rock, Arkansas Processing and
Distribution Center.
In an EEO complaint filed on August 31, 2010, Complainant alleged that the
Agency subjected her to hostile workplace discrimination on the bases of
sex (female) and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964. Specifically, she alleged that,
since April 2010, her supervisor stood behind her and watched her as
she operated a mail processing machine and, on June 14, 2010, she was
given a letter of warning (LOW).
On August 13, 2010, the Agency dismissed Complainant's complaint on
the ground that it failed to establish that she is aggrieved. In its
decision, the Agency states that it is the responsibility of Complainant's
supervisor to observe employees in the performance of their duties to
identify time wasting practices and direct employees in their duties.
The Agency does not address the LOW issue, noting that Complainant did
not raise it in her formal complaint.
CONTENTIONS ON APPEAL
Complainant did not submit a formal statement in support of her appeal,
but instead proffered a copy of a union grievance she filed on the same
matter. The Agency stands by its decision.
ANALYSIS AND FINDINGS
The Commission's regulation at 29 C.F.R. � 1614.107(a)(1) permits an
agency to dismiss a complaint that fails to state a claim upon which
relief may be granted in the EEO process. An agency must, however,
accept a complaint from any "aggrieved" employee (or applicant) who
alleges that she has been discriminated against because of race, color,
religion, sex, national origin, age, disabling condition or reprisal. 29
C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an aggrieved employee as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Dep't of the Air Force,
EEOC Request No. 05931049 (Apr.21, 1994).
We note, initially, that the record contradicts the Agency's finding that
the LOW issue was not part of the instant complaint. The complaint, on
its face, clearly reflects otherwise. Since a LOW obviously qualifies as
an injury or harm that (if discriminatory) can be remedied under Title
VII, the Agency's failure to address this issue warrants reversal of
its decision. Id.
In addition, it is clear that Complainant is alleging that her
gender is the reason for continuous and unwarranted monitoring by her
supervisor. She has thus stated a viable claim of sexual harassment as
well. The Agency's explanation for the monitoring goes to the merits of
the claim and cannot properly be a basis for concluding that the claim is
not actionable. See Ware v. United States Postal Service, EEOC Request
No. 01992151 (January 3, 2002) (an agency's explanation for challenged
actions are not relevant to whether a complaint states a claim).
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 (E0610)
The Agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108et 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 (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 (K0610)
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,
DC 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 (M0610)
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), at 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 (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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
April 26, 2011
__________________
Date
2
0120110445
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120110445