01a00507
04-14-2000
Andre Griffin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Andre Griffin, )
Complainant, )
)
v. ) Appeal No. 01A00507
) Agency No. 4F900041299
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 19, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on September 29,
1999, pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405), the Commission accepts
the complainant's appeal from the agency's final decision in the
above-entitled matter.
ISSUE PRESENTED
The issues presented herein are whether the agency properly dismissed
the present complaint for failure to file the formal complaint within
fifteen days of receipt of the right to go formal and for failure to
state a claim.
BACKGROUND
For the relevant period of time, complainant was employed by the United
States Postal Service as a carrier technician, GS-6. Complainant stated
that on June 19, 1999, he requested leave to attend to his vehicle, which
was vandalized. At this point, complainant stated that his supervisor
denied his request for leave and proceeded to yell at him.
Believing that he was the victim of discrimination, complainant on June
24, 1999, initiated contact with an EEO Counselor. During the counseling
period, complainant stated that on June 19, 1999, he was sexually harassed
when he was denied leave and yelled at by his supervisor.
Counseling failed, and on September 3, 1999, complainant filed a formal
complaint claiming he was the victim of unlawful employment discrimination
on the bases of his race (African-American), gender (male) and reprisal
(prior EEO activity). The formal complaint was comprised of the matters
for which complainant underwent EEO counseling, discussed above.
On September 29, 1999, the agency issued a final decision dismissing the
present complaint for failure to file a timely complaint and for failure
to state a claim. The agency found, with respect to failure to file a
timely complaint, that complainant received the notice to file a formal
complaint on August 18, 1999 and complainant filed his formal complaint
on September 3, 1999, which is beyond the fifteen day limitations period.
In addition, the agency found that since complainant was claiming he was
yelled at by his supervisor, he is not considered an aggrieved employee,
therefore, his complaint fails to state a claim. The Commission notes,
that the agency, in their final decision, failed to address complainants
claim that he was denied leave, and the Commission deems the agency's
action to be tantamount to a dismissal of that matter.
On appeal, complainant argues that he did not receive the notice to
file a formal complaint until August 21, 1999, therefore, the formal
complainant was in fact timely filed. The Commission notes that the
return receipt evidencing when the notice to file a formal complaint
was received by complainant does not bare any signature.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that
an agency shall dismiss a complaint which fails to comply with the
applicable time limits contained in Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as 29 C.F.R. � 1614.106), which,
in turn, requires the filing of a formal complaint within fifteen (15)
days of receiving notice of the right to do so.
In addition, where, as here, there is an issue of timeliness, "[a]n
agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness." Guy,
v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992)). In addition, in Ericson v. Department of the Army,
EEOC Request No. 05920623 (January 14, 1993), the Commission stated
that �the agency has the burden of providing evidence and/or proof to
support its final decisions.� See also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992). In this case, the agency,
on appeal, has submitted a return receipt without a signature as evidence
establishing when complainant received the notice to file a formal
complaint. The Commission finds, that since the return receipt bares no
signature, it is impossible to accurately determine when complainant or
a resident of his household did in fact receive the notice to go formal.
Therefore, the agency's decision dismissing the present case for failure
to timely file the formal complaint was improper.
The agency, in their decision, also dismissed the present case for
failure to state a claim. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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). 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. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
The only proper question in determining whether a claim is within
the purview of the EEO process are (1) whether the complainant is
an �aggrieved employee� and (2) whether he has alleged employment
discrimination covered by the EEO statutes. An employee is �aggrieved�
if he has suffered direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990). Here, complainant claimed that he was yelled at
and denied leave by his supervisor. With respect the denial of leave,
complainant's claim is sufficient to render him an �aggrieved� employee.
Because complainant has claimed that the adverse action was based on his
race, gender and prior EEO activity, complainant has raised a claim within
the purview of the EEOC regulations. Therefore, the agency improperly
dismissed complainant's claim of being denied leave.
However, with regard to complainant being yelled at, the Commission has
repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No. 05940695
(February 9, 1995). Moreover, even when this claim is viewed within
the context of harassment complaint, and therefor together with being
denied leave, these alleged incidents of harassment still fail to state
a claim. Specifically, it is well-settled that, unless the conduct is
very severe, a single incident or a group of isolated incidents will not
be regarded as creating a discriminatory work environment. See James
v. Department of Health and Human Services, EEOC Request No. 05940327
(September 20, 1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th
Cir. 1982). In the instant complaint, we find that complainant failed
to show that he suffered harm with respect to the terms, conditions or
privileges of his employment as a result of being yelled. Therefore,
standing alone, this claim fails to state a claim. Additionally,
even when viewed within the context of claim of harassment and along
with being denied leave, and in a light most favorable to complainant,
these claims are too isolated and insufficiently severe to establish
a hostile work environment. Consequently, complainant's claim that he
was harassed when he was yelled at was properly dismissed pursuant to
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(1)), for failure to state a claim.
CONCLUSION
For the reasons set forth herein, the Commission hereby REVERSES the
agency's final decision finding that complainant untimely filed his formal
complaint and REVERSES the agency's decision dismissing complainant's
claim of being denied leave. The Commission AFFIRMS the remainder of
the agency's decision.
ORDER (E1199)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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
(R1199)
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:
April 14, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.