01A03279
12-27-2000
Amy D. Pepprock, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Amy D. Pepprock v. United States Postal Service
01A03279
01A05933
December 27, 2000
.
Amy D. Pepprock,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A03279
01A05933
Agency Nos. 4E-590-0019-00
4E-590-0037-00
DECISION
On January 26, 2000, complainant filed a formal complaint of
discrimination, Agency No. 4E-590-0019-00, alleging harm in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> In her complaint, complainant claimed that she was
subjected to discrimination on the bases of race and sex when:
On December 16, 1999, the complainant's co-worker called her at home
and talked for 35 minutes about when complainant would return to duty;
On December 31, 1999, the complainant's co-worker told her that she had
driven by the complainant's house;
On January 3, 2000, the complainant's co-worker returned from her route
and banged her �stuff� loudly, then gave complainant a dirty look; and
On January 4, 2000, the complainant's co-worker complained and yelled
at the supervisor about complainant helping others, and told another
employee that complainant was harassing her.
The agency issued a final decision (FAD) on February 25, 2000, dismissing
the complaint for failure to state a claim. Specifically, the agency
found that complainant had not suffered any harm with respect to a term,
condition, or privilege of her employment and was not an aggrieved
employee within the meaning of EEOC Regulations. On March 23, 2000,
complainant timely appealed the agency's final decision. (EEOC Appeal
No. 01A03279).
On June 30, 2000, complainant filed another formal complaint, Agency
No. 4E-590-0037-00, claiming that she had been discriminated against
on the bases of sex and reprisal in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. when:
(1) On March 27, 2000, her acting supervisor (the co-worker identified
in Complaint No. 4E-590-0019-00) told her �not to leave any mail� and
�yelled� at her.
By decision dated July 31, 2000, the agency dismissed the complaint for
failure to state a claim. The agency found that the acting supervisor's
isolated remark did not state a claim of discriminatory harassment.
On September 8, 2000, complainant timely appealed the agency's final
decision. (EEOC Appeal No. 01A05933).
EEOC Regulations allow the Commission to consolidate two or more
complaints filed by the same complainant. See 29 C.F.R. � 1614.606.
Consolidation is encouraged to avoid the fragmentation of claims, and to
use Commission resources more efficiently. See generally Equal Employment
Opportunity Management Directive for 29 C.F.R. � 1614. Part 1614 (EEO
MD-110), ch.5), sec. III (November 9, 1999). Therefore, the Commission
consolidates Appeal Nos. 01A03279 and 01A05933 in the present decision.
The Commission requires agencies to address the �pattern aspect� of
harassment claims to avoid piecemeal dismissal of matters united by an
analogous theme. See Meany v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994); see also EEO MD-110 5. When analyzing
harassment claims to determine whether they state a claim, the Commission
requires that all incidents be considered together, and in a light most
favorable to complainant. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). This analysis may include claims
from different formal complaints.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 447
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or persuasive 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 subjectively perceives it as such. Harris,
supra.
In the present case, complainant clearly alleges a pattern of harassment
by one individual, from mid-December 1999 through late March 2000.
All of the matters raised address the purported action of one agency
employee, who is complainant's co-worker and who has purportedly acted
in the capacity of complainant's acting supervisor.
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).
Accordingly, the agency's dismissal of Complaint Nos. 4E-590-0019-00
and 4E-590-0037-00 is REVERSED and the claims are REMANDED for further
investigation in accordance with the ORDER below.
ORDER
The agency is ordered to take the following actions:
Notify complainant within fifteen (15) calendar days of the date this
decision becomes final that her complaints (Complaint Nos. 4E-590-0019-00
and 4E-590-0037-00) are being consolidated for further processing in
accordance with 29 C.F.R. � 1614.606;
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 fifteen (15) 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 notice of consolidation, 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
December 27, 2000
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.