01990432
03-20-2000
Cordia M. Ford, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cordia M. Ford v. United States Postal Service
01990432
March 20, 2000
Cordia M. Ford, )
Complainant, )
)
v. ) Appeal Nos. 01990432
) 01991199
William J. Henderson, ) Agency Nos. 4-H-300-0149-98
Postmaster General, ) 4-H-300-0316-98
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On July 7, 1998, complainant filed a formal complaint of discrimination,
Agency No. 4-H-300-0149-98, alleging harm in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq. In her complaint, complainant claimed that she
was subjected to discrimination on the bases of physical disability
(fibromyalgia/epigastric pain), mental disability (anxiety/depression),
and in reprisal for prior EEO activity when on January 14, 1998,
complainant's supervisor stated that she believed complainant was
intoxicated when she became ill at work.
The agency issued a final decision (FAD) on September 24, 1998, dismissing
the complaint for failure to state a claim. Specifically, the agency
found that no changes were made to any term, condition, or privilege of
complainant's employment, and that the supervisor's isolated remark did
not state a claim of discriminatory harassment. On October 20, 1998,
complainant timely appealed the FAD.<1> (EEOC Appeal No. 01990432).
Complainant filed another formal complaint on September 3, 1998, Agency
No. 4-H-300-0316-98, alleging discrimination on the same bases as in her
prior complaint when on June 11, 24, and 26, 1998, complainant received
Notifications of Personnel Actions (PS Form 50's), containing incorrect
information. By FAD dated November 4, 1998, the agency dismissed the
complaint for failure to state a claim. The agency found that the Form
50's were processed to correct complainant's "employment history," and
did not render complainant aggrieved. On November 25, 1998, complainant
timely appealed the November 4, 1998 FAD. (EEOC Appeal No. 01991199).
On appeal, complainant argues that she suffered from a continuing pattern
of harassment. She further claims that she lost $10,500.00 in pay and
had her insurance reduced by the changes made through the Form 50's.
She attached a copy of the undated Counselor's Report for the claim
appealed in 01990432, which notes that the supervisor quizzed other
employees about complainant's condition.
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
22, 1994).
After a review of the agency's final decision appealed in 01991199, it
seems that the agency addressed the merits of complainant's complaint
without a proper investigation as required by the regulations. We find
that the agency's articulated reason for the action in dispute, i.e.,
that the Form-50's did not harm complainant because they only corrected
her employment history, goes to the merits of complainant's complaint,
and is irrelevant to the procedural issue of whether she has stated a
justiciable claim under Title VII. See Osborne v. Department of the
Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United
States Postal Service, EEOC Request No. 05930220 (August 12, 1993);
Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642
(August 15, 1991). Complainant's claimed loss of $10,500 and reduction
of insurance as a result of the Form-50 changes clearly reflect that
the terms of her employment were affected. Therefore, the agency's
dismissal of complainant's September 3, 1998 complaint was improper.
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 subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
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).
By itself, the claim raised in complainant's July 7, 1998 complaint may
not state a claim; however, the claim should be considered together with
complainant's September 3, 1998 complaint. See Cobb v. Department of
the Treasury, EEOC Request No. 050970077 (March 13, 1997) (Considering
claims from different complaints together to determine whether a pattern
of harassment exists). When considered with her subsequent complaint,
the supervisor's statement and questioning regarding whether complainant
was intoxicated states a claim. Therefore, the agency's dismissal of
the July 7, 1998 complaint was also improper.
CONCLUSION
Accordingly, the agency's dismissal of complainant's July 7, 1998 and
September 3, 1998 complaints is REVERSED, and the claims are REMANDED
for further investigation.
ORDER
The agency is ORDERED to process the remanded claims 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 consolidate both
complaints for a single investigation pursuant to 64 Fed. Reg. 37,644,
37,661 (1999) (to be codified as 29 C.F.R. � 1614.606). The agency
shall acknowledge to the complainant that it has received the remanded
and consolidated 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, including
the notice of consolidation, 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 (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:
March 20, 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 Assistant
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 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.