0120091802
06-11-2010
David F. Pratt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
David F. Pratt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120091802
Agency No. 4G870010108
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 16, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. Upon review, the Commission finds that Complainant's
complaint was improperly dismissed for failure to state a claim.
In his complaint, Complainant alleged that he was subjected to
discrimination on the bases of national origin (American of Scottish
Decent), sex (male), age (55), and in reprisal for prior protected EEO
activity under when:
1. On September 5, 2008, he was given a pre-disciplinary interview
broadcast over a public intercom for co-workers to hear;
2. He was not awarded Million Mile Awards for safe driving;
3. Management maintained old adjudicated discipline on his Official
Personnel File (OPF); and
4. He was denied payment of money owed to him.
On appeal, Complainant asserts that the pre-disciplinary interview
was intentionally broadcast over the station intercom system and that
the incident along with others constitutes ongoing discrimination.
Complainant requests that we overturn the agency's dismissal. The agency
requests that we affirm the dismissal.
The regulation set forth at 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).
A fair reading of the EEO complaint and related counseling materials
reveals that Complainant is raising a harassment/hostile work environment
claim based on his national origin, age, sex, and in reprisal for
his prior protected EEO activity. The matters identified above are
incidents comprising complainant's harassment claim. A hostile work
environment claim is comprised of a series of separate acts that
collectively constitute one unlawful employment practice. National
Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117 (2002).
Unlike a claim which is based on discrete acts of discrimination, a
hostile work environment claim is based upon the cumulative effect of
individual acts that may not themselves be actionable.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that 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).
We also note that the Commission has a policy of considering reprisal
claims with a broad view of coverage. See Carroll v. Department of the
Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy,
claimed retaliatory actions that can be challenged are not restricted
to those which affect a term, condition, or privilege of employment.
See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53
(2006); EEOC Compliance Manual Section 8, "Retaliation;" No. 915.003
(May 20, 1998), at 8-15. Rather, a complainant is protected from any
discrimination that is reasonably likely to deter protected EEO activity.
See id.
Applying these principles to the case before us, we find that the
agency improperly dismissed the complaint for failure to state a claim.
Complainant alleged a set of facts that, if true, may be sufficiently
pervasive to constitute a claim of hostile work environment. A fair
reading of the record, as reiterated by complainant's arguments on appeal
is that complainant asserts a pattern of ongoing harassment including
a pre-disciplinary interview broadcast over the public intercom, denial
of an award, maintenance of old adjudicated discipline in his personnel
file, and non-payment of monies owed to him by the agency. If true,
this pattern of actions could be sufficient to state a claim of a hostile
work environment. Additionally, these actions against complainant may
be enough to reasonably deter others from protected EEO activity, and
thus are also sufficient to state a claim for retaliatory harassment.
Accordingly, the agency's decision to dismiss Complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E0408)
The agency is ordered to 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 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 (K0408)
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)
(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 (M0408)
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 (R0408)
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 (Z0408)
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
June 11, 2010_______________
Date
2
0120091802
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091802