0120092597
10-30-2009
Sylvia A. McKeiver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Sylvia A. McKeiver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120092597
Agency No. 4K200008709
DECISION
Complainant filed a timely appeal with the Commission from the agency's
decision dated April 27, 2009, 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 an allegation in complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. For the following reasons, the Commission
MODIFIES the agency's final order and REMANDS the allegation for
investigation.
ISSUE PRESENTED
Whether the agency's decision to dismiss complainant's complaint on the
grounds that it failed to state a claim was appropriate.
BACKGROUND
The record shows that at the time of the alleged discriminatory action,
complainant was employed as a Carrier Technician at the agency's Curseen
& Morris station in Washington, DC. The record further indicates that
complainant requested pre-complaint processing on February 21, 2009,
alleging that she was discriminated against on the bases of sex (female)
and retaliation (prior EEO activity) and subjected to a hostile work
environment when: (1) on February 19, 2009 she was given a broken scanner;
(2) on February 18, 2009, she received a Pre-Disciplinary Interview; and
(3) on February 20, 2009, a statement she made to management was posted
on a bulletin board visible to other agency employees.
In an investigative affidavit, complainant stated that she was asked
to attend a Pre-Disciplinary Interview (PDI). Complainant alleges that
during the interview, she was accused of an unspecified incident which
occurred on February 10, 2009. In the affidavit, complainant stated that
she was on leave at the time the incident occurred. During the PDI,
complainant informed her supervisor that she intended to file a formal
complaint of discrimination because she was being falsely accused of
the February 10, 2009 incident.
On February 19, 2009, complainant submitted a statement to management,
including her immediate supervisors. In the statement, complainant
reiterated her intent to file a formal complaint of discrimination.
The statement also identified the individuals complainant alleged were
responsible for the February 10, 2009 incident. On February 20, 2009,
complainant alleges that management posted her statement on a bulletin
board, where it could be read by other employees. Subsequently,
complainant alleged that several employees called her a "snitch"
and exhibited behavior which complainant maintained made her feel
"intimidated." On March 30, 2009, complainant filed a formal complaint of
discrimination with the agency. The agency issued its final decision
on April 27, 2009, in which it dismissed complainant's complaint on the
grounds that she failed to state a claim of discrimination in accordance
with 29 C.F.R. � 1614.107(a)(1).
CONTENTIONS ON APPEAL
On appeal, complainant reiterates that she was subjected to harassment
on account of sex (female) and in retaliation for prior EEO activity.
Accordingly, complainant requests that the final agency decision be
reversed. In its brief, the agency requests that that the final agency
decision be affirmed.
ANALYSIS AND FINDINGS
Issues (1) and (2)
EEOC Regulation 29 C.F.R. � 1614.107(a) (1) provides that an agency
shall dismiss a complaint that fails to state a claim under � 1614.103
or � 1614.106(a). 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). The Commission's federal sector case precedent has 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. Department of the Air Force, EEOC Request
No. 05931049 (April 22, 1994).
Moreover, we note that, 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 perceives
it as such. Harris, supra at 21-22.
With respect to issues (1) and (2), we do not find that complainant has
established that she suffered a present harm with respect to a term,
condition, or privilege of employment. We note in this regard that the
PDI is not a formal disciplinary proceeding. Management merely conducted
an inquiry to ascertain facts related to the February 10 incident.
There is no persuasive evidence that issues (1) or (2) adversely affected
complainant's personnel records, wages, hours or pay, etc. Furthermore,
to the extent that complainant alleges incidents (1) and (2) are also
an acts of harassment, we find no evidence that these matters were more
than isolated incidents that were neither severe nor pervasive enough
to rise to the level of actionable harassment. Accordingly, we AFFIRM
the agency's dismissal of issues (1) and (2).
Issue (3)
When reprisal is alleged, adverse actions need not materially alter
the terms and conditions of employment to state a viable claim. The
anti-retaliation provisions of the employment discrimination statutes
seek to prevent an employer from interfering with an employee's efforts
to secure or advance enforcement of the statutes' basic guarantees,
and are not limited to actions affecting employment terms and
conditions. Burlington Northern & Santa Fe Railroad Co. v. White, 548
U.S. 53, 126 S. Ct. 2405 (2006). Under the Commission's broad view of
reprisal, any adverse treatment that is based upon a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in protected activity, states a claim. See Lindsey v. United
States Postal Service, EEOC Request No. 05980410 (November 4, 1999)
(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)).
In applying this standard, we find that with respect to issue (3),
complainant has established that she suffered adverse treatment when her
statement to management, pursuant to the PDI, was posted on a bulletin
board at her workplace. The statement contained information of a
confidential nature, concerning complainant's intent to pursue protected
EEO activity. The statement was posted one day after complainant told
management about her intent to engage in EEO activity. Subsequently,
complainant was subjected to adverse treatment by coworkers. It was
reasonable for management to foresee that by posting the statement,
complainant would be subject to adverse treatment from other employees,
which was likely to intimidate and dissuade her from pursuing the EEO
process. Accordingly, we REVERSE the agency's final order with respect
to issue (3).
CONCLUSION
The Commission finds that the complainant has stated a claim under EEOC
regulations with respect to issue (3) because complainant has alleged
facts which indicate that she was subjected to adverse treatment that
was based upon a retaliatory motive and which was reasonably likely to
deter her and/or other employees from engaging in protected activity.
Accordingly, the agency's final decision dismissing complainant's
complaint is MODIFIED as indicated above and issue (3) is REMANDED for
investigation in accordance with the order below.
ORDER (E0408)
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 (K1208)
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 (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
______10/30/09____________
Date
2
0120092597
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120092597