05970284
10-08-1998
Andrew P. Moore II, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Andrew P. Moore II v. United States Postal Service
05970284
October 8, 1998
Andrew P. Moore II, )
Appellant, )
) Request No. 05970284
v. ) Appeal No. 01962838
) Agency No. 1H-322-1001-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On December 14, 1996, Andrew P. Moore II (hereinafter referred to as
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Andrew P. Moore
II v. Marvin T. Runyon, Jr., Postmaster General, United States Postal
Service, EEOC Appeal No. 01962838 (December 5, 1996). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the appellant's request is granted.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's final decision dismissing appellant's complaint for failure
to state a claim.
BACKGROUND
Appellant filed his formal complaint on December 12, 1995, alleging
discrimination based on race (black) and reprisal. On January 29, 1996,
the agency issued its final agency decision (FAD), dismissing appellant's
complaint for failure to state a claim. On appeal, the previous decision
affirmed the agency's action.
Appellant alleged that his supervisor (S1) yelled at him for stopping a
machine and continued to scream at him thereafter. He further alleged
that S1's action was part of a continuing pattern by S1 and other managers
to harass him. According to appellant, he had filed several other EEO
complaints in addition to the instant complaint, including at least one
involving S1.
The previous decision agreed with the agency that the issue raised in
the instant complaint failed to state a claim. The decision found that
appellant's single allegation of a verbal confrontation was not sufficient
to render him aggrieved.
In his request for reconsideration (RTR), appellant contends that his
complaint was not confined to the single incident described therein but
part of a larger pattern of harassment. The agency did not file comments
in response to appellant's RTR.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). Having reviewed the record, the Commission finds
that appellant's request meets the criteria of 29 C.F.R. �1614.407(c).
Upon reconsideration, we find that appellant has filed a series of
complaints that state a claim of harassment and hostile work environment
and therefore that the incident herein is not an isolated incident.
We remand the complaint for consolidation with his other pending
complaints.
In the matter before us, the agency has defined appellant's complaint
as a single, discreet event. In framing the issue as an individual
episode, the agency fragments the impact of his several complaints into
separate parts and ignores appellant's general claim of harassment.
While the Commission's regulations assign agencies the responsibility
for identifying and framing the issues raised during the initial EEO
processing, agencies may not ignore the totality of the circumstances
where appellants raise allegations of a hostile work environment.
See EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994), at 4-6. Here, the complaint
alleges not only the event described by the agency but also sets out a
claim of harassment by agency management.
For this reason, we find that the agency improperly dismissed appellant's
complaint. On remand, we direct the agency to consolidate this complaint
with any other pending complaints of appellant's that state a general
claim of harassment and hostile work environment.
CONCLUSION
After a review of the appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the appellant's request meets the criteria of 29 C.F.R. �1614.407(c).
It is therefore the decision of the Commission to grant the appellant's
request. The decision in EEOC Appeal No. 01962838 (December 5, 1996) and
the agency's final decision are REVERSED and the complaint is REMANDED.
The agency is directed to comply with the Order, below. There is no
further right of administrative appeal on a decision of the Commission
on a Request for Reconsideration.
ORDER
The agency is ORDERED to consolidate the instant complaint with
appellant's other complaints and process the remanded allegations in
accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegations within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to appellant a copy of the investigative file and also shall
notify appellant 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 appellant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
OCT 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat