01990913
09-10-1999
Denise C. Hampton, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Denise C. Hampton v. United States Postal Service
01990913
September 10, 1999
Denise C. Hampton, )
Appellant, )
)
v. ) Appeal No. 01990913
) Agency No. 4-F-926-0174-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On November 9, 1998, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 14, 1998,
pertaining to her 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., �501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. In her complaint,
appellant alleged that she was subjected to discrimination on the bases
of race (African-American), color (black), religion (Christian), gender
(female), age (date of birth February 15, 1955), mental disability
(stress), and in reprisal for prior EEO activity when:
On June 1, 1998, appellant was told by an agency injury compensation
office representative to request light duty because her injury claim
had not been approved;
On June 2, 1998, appellant received a letter stating that the light
duty job offered was unacceptable to the Office of Workers' Compensation
Programs (OWCP);
On June 5, 1998, appellant received a letter stating that there was no
medical documentation attached to the paperwork she submitted to the
OWCP;
On June 10, 1998, appellant was offered an inappropriate limited duty
job under a pending OWCP claim;
Appellant was not allowed to return to work until June 11, 1998,
although she was released for duty on May 18, 1998;
Appellant was called into the supervisor's office on June 11, 1998, and
informed that she would be supervised by the acting station manager; and
On June 19, 1998, appellant's OWCP Form CA-8 was returned to her
from the OWCP office, but it was a photocopy, was not signed by an
agency official, and was not properly completed by the agency so that
appellant's leave buy-back could not be processed.
The agency accepted allegations (5) and (7), but dismissed
allegations (1), (2), (3), (4), and (6) pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim. Specifically, the
agency found that appellant suffered no personal harm from the dismissed
allegations. Further, the agency found that appellant was attempting to
lodge a collateral attack against the OWCP process, and that allegations
(2) and (4) related to the agency's duty to defend itself before the
OWCP.
On appeal, appellant drops the bases of age and religion, but proceeds
with her appeal on the remaining bases. Appellant contends that the
agency harassed her by failing to follow OWCP and Federal Employee
Compensation Act guidelines. Regarding allegation (3), appellant claims
that the agency, not OWCP, was at fault because the agency's request for
additional medical documentation was an attempt to delay the processing of
appellant's OWCP complaint. It appears from the record that appellant
submitted medical documentation to the agency, including a required
form CA-20, which the agency in turn was to submit to OWCP. On June 5,
1998, appellant was informed by the agency that she did not submit
all the required documentation, specifically identifying the form
CA-20 as missing. Appellant claimed that she had submitted the form
CA-20 and that the agency was attempting to delay the processing of her
OWCP claim by requesting the previously submitted documentation again.
Regarding allegation (6), appellant explains that the acting station
manager, assigned as appellant's supervisor, was the responsible agency
official found to have discriminated against appellant in Hampton v. USPS,
EEOC Appeal No. 01962904 (March 24, 1998).
A review of EEOC Appeal No. 01962904 reveals that the acting station
manager was the responsible agency official in appellant's successful
non-selection claim. The Commission required the acting station manager
to attend training concerning race and color discrimination, but did
not prohibit the acting station manager from working with appellant.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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 Commission has held that a collateral attack to the OWCP process fails
to state a claim. See Conley v. Navy, EEOC Appeal No. 05970402 (Feb. 11,
1999); Agustin v. Department of Labor, EEOC Request No. 05960127 (Dec. 19,
1996) (direct attack of manner in which OWCP personnel processed an injury
claim is a collateral attack). An attack of the merits of an OWCP claim,
or of the agency's action in representing its interests in the OWCP forum,
even by the submission of allegedly false information, does not state a
claim. See Pirozi v. Department of the Navy, EEOC Request No. 05970146
(Oct. 23, 1998); Ward v. United States Parcel Service, EEOC Request
No. 05980036 (Mar. 19, 1998). However, allegations involving the OWCP
process are accepted in limited circumstances, such as when the agency
fails to submit the required paperwork. See Hovarth v. Department
of the Navy, EEOC Request No. 05960780 (Oct. 23, 1998) (citing Foster
v. United States Postal Service, EEOC Appeal No. 01951370 (May 8, 1995),
req. for recons. den. EEOC Request No. 05950693 (May 16, 1996)).
In the present case, the Commission finds that allegations (1), (2),
and (4) concern a collateral attack on the OWCP process. Appellant has
challenged the propriety of OWCP decisions and/or agency actions to
defend its interests in each allegation, and, therefore, the allegations
properly were dismissed as a collateral attack of the OWCP process.
Regarding allegation (3), however, it appears that appellant is
alleging that the agency's repeated, unnecessary requests for medical
documentation are causing a delay to the processing of appellant's
OWCP claim. Accordingly, allegation (3) fits the narrow collateral
attack exception, and its dismissal is reversed.
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 (Mar. 13,
1997).
In her formal complaint, and on appeal, appellant alleged that she has
been subjected to a pattern of harassment. Regarding allegation (6),
however, appellant has not provided any explanation of the harassing
or abusive conduct suffered at the hands of the acting station manager.
Although the acting station manager was the responsible agency official in
appellant's prior complaint, the mere proximity and reporting relationship
between appellant and the acting station manager, without evidence of
harassing conduct, fails to state a claim, even when considered with
appellant's other allegations.
CONCLUSION
Accordingly, the agency's dismissal of allegations (1), (2), (5), and
(6) is AFFIRMED. However, the agency's dismissal of allegations (3)
is REVERSED, and the allegation is REMANDED for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 acknowledgment 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 RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. If you file
a request to reconsider and also file a civil action, 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:
Sept. 10, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations