U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darlene F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 0120141894 Agency No. 66-000-0003-14 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated March 24, 2014, dismissing her complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Inspector, Team Leader, at the Agency's Division Headquarters in Charlotte, North Carolina. On February 28, 2014, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and/or reprisal for prior protected EEO activity when she was subjected to a hostile work environment. In support of her claim of ongoing harassment, Complainant alleged the following events: 1. Complainant left the office at 3 p.m. on December 17, 2013 and placed a yellow sticky note on door stating "on cell will return shortly." The Assistant Inspector in Charge (AIC) called Complainant as to her whereabouts. Complainant told the AIC that she intended on coming back to the office, but had brought work home with her in the event she was unable to make it back to the office. The AIC told Complainant that her day ended when she left the office. However, Complainant alleged that other employees were allowed to work at hours past their normal work day. 2. On or around December 20, 2013, Complainant took her staff out for a holiday lunch and team meeting. During this lunch, one of Complainant's staff members received a call from management asking where she was. While other team leaders take their staff to such lunches for holidays and other occasions, they were not questioned about their time, management does not call one of their staff members to inquire about their manager, and they are not held to a working lunch of one-hour as the AIC thereafter mandated only to Complainant. 3. On or around January 14, 2014, the AIC stopped at Complainant's desk to discuss an item in her eDiary. At that time, Complainant was told by the AIC to remove the post-it notes from her door. Complainant had previously been told that she would have to place notes on her door by the AIC whenever she left her office to inform management where she was located. No other team leader was required to use notes on their doors. Complainant was initially instructed to do so in January 2012, and she was confused about the order to remove the notes and requested that the AIC put it in writing. The AIC then told Complainant to remove the note from the door and if she did not do it, she would be issued a Letter of Warning for insubordination. 4. On or around January 14, 2014, the AIC informed Complainant that any hours worked on her EEO complaint needed to be approved by her. She was told to remove the time she had worked on her informal EEO from her official work records because those hours had not been approved. In its March 24, 2014 final decision, the Agency dismissed the claim of harassment, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency found that events (1) - (3) constituted isolated events where the AIC was directing Complainant in the performance of her duties. As to event (3), the Agency noted that Complainant had not been issued any disciplinary action or subjected to any pre-disciplinary meeting. Finally, the Agency held that event (4) involved Complainant's claim for a denial of official time and indicated it would process that claim separately. The instant appeal from Complainant followed. On appeal, Complainant argues that the Agency failed to view the totality of the events. As for claim (3), Complainant indicates that for two years, she was the only manager who was instructed to place notes on her door informing management of her whereabouts all the time. She also alleges she is the only manager who has been harassed at luncheons regarding her status and location. Complainant indicates that the management has singled her out creating a hostile work environment and subjecting her to retaliation for her EEO activity. As such, Complainant requested that the Commission reverse the Agency's dismissal and remand the matter for further processing. The Agency, in response to the appeal, asserted that Complainant has not shown that she was subjected to events which were severe or pervasive enough to state a claim of harassment. Therefore, the Agency asked that the Commission affirm its decision. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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 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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). 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. Thus, not all claims of harassment are actionable. The Commission has also stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute unlawful retaliation. See Burlington Northern and Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit 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. Id. Upon review of the record, we find that the Agency failed to review the events alleged by Complainant as a claim of ongoing harassment sufficient to create a hostile work environment. A fair reading of Complainant's allegations indicate that she has asserted that she has been subjected to higher scrutiny regarding her whereabouts for over two years. In support of her assertion, she indicated that for two years she was instructed to post notes on her office door when she was not there. Moreover, she alleged that, even when a note was posted, management would contact her or others to check on her such as during the holiday luncheon. She also alleged that she was not allowed to work at home while other similarly situated employees were allowed to do so. Considering her allegations together and in the light most favorable to her, we conclude that Complainant has sufficiently alleged a viable claim of harassment/hostile work environment based on sex, race, and/or retaliation. With regard to incident (4), EEOC Regulation 29 C.F.R. § 1614.605(b) provides that if a complainant is an employee of the agency, he or she shall have a reasonable amount of official time, if otherwise on duty, to prepare an EEO complaint and to respond to the Agency and EEOC requests for information. The Commission has stated that an allegation pertaining to the denial of official time states a separately processable claim alleging a violation of the Commission's regulations, without requiring a determination of whether the action was motivated by discrimination. As such, the claim is not processed in accordance with 29 C.F.R. § 1614.108, since the focus is not on the motivation, but rather the justification of why the complainant was denied a reasonable amount of official time. Moorman, Jr. v. United States Postal Service, EEOC Appeal No. 0120123527 (January 31, 2013). In this regard, we note that the Agency properly indicated in its final decision that it would separately process Complainant's allegation that she was improperly denied official time. However, in addition to that determination, we will also direct the Agency to consider the AIC's actions with regard to Complainant's use of official time as part of the evidence offered in support of her harassment/hostile work environment claim because, under the unique facts of this case, Complainant is alleging that the AIC's actions with regard to her official time provides further evidence of management's discriminatory/retaliatory animus in general. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded harassment/hostile work environment claim 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 (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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (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 21, 2015 __________________ Date 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141894