Dennis J. Balogh, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 8, 1999
01973961 (E.E.O.C. Jan. 8, 1999)

01973961

01-08-1999

Dennis J. Balogh, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Dennis J. Balogh v. United States Postal Service

01973961

January 8, 1999

Dennis J. Balogh, )

Appellant, )

)

v. ) Appeal No. 01973961

) Agency No. 4C-440-0013-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The appellant timely filed an appeal with this Commission from a final

decision, dated March 13, 1997, which the agency issued pursuant to EEOC

Regulation 29 C.F.R. �1614.107(a). The Commission accepts the appellant's

appeal in accordance with EEOC Order No. 960, as amended.

The final agency decision identified 11 allegations raised by the

appellant's October 31, 1996 complaint. The decision accepted allegation

8 (September 5, 1996 removal letter) for investigation. The decision

dismissed allegations 1 through 3 on the ground that they stated the

same claims that were raised in a prior EEO complaint, agency number

4C-440-1322-96. The agency dismissed the remaining allegations on the

ground that they failed to state a claim.

On appeal, the appellant submits statements from other employees

describing instances of harassment which they have observed.

The proper focus for dismissals of individual EEO complaints under 29

C.F.R. �1614.107(a) is on whether the complainant is allegedly aggrieved

due to an unlawful employment practice in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.;

the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et

seq.; the Equal Pay Act, 29 U.S.C. 206(d); or the Rehabilitation Act,

as amended, 29 U.S.C. 791 et seq. Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997), citing Hishon v. King &

Spalding, 467 U. S. 69, 73 (1984) (complaint states a claim because Title

VII's prohibition of discrimination with respect to an employee's "terms,

conditions, or privileges of employment" includes benefits that are part

of an employment contract and benefits which an employer chooses, but is

not required, to provide its employees). Even where a complaint does not

challenge an agency action or inaction regarding hiring, termination,

compensation or any other specific term, condition, or privilege of

employment, the complaint may still state a claim if the complaint

allegations are sufficient to state a hostile or abusive environment

claim. Id., citing Harris v. Forklift Systems, Inc., 510 U.S. 17,

21 (1993) (harassment is actionable if it is sufficiently severe or

pervasive to alter the conditions of the complainant's employment).

The Commission finds that the appellant's complaint, read in conjunction

with information submitted with his "Information for Precomplaint

Counseling" form, contains sufficient factual allegations to indicate that

the appellant may have been subjected to harassment that was sufficiently

severe or pervasive to alter the conditions of his employment. See Cobb,

supra. Accordingly, the Commission finds that the appellant's complaint

states a hostile work environment claim under 29 C.F.R. Part 1614. The

allegations identified in the final agency decision should be considered

as examples of the alleged hostile treatment to which the appellant has

been subjected, rather than as separate claims of discrimination.

The Commission also finds that the agency erred when it dismissed

allegations 1, 2, and 3 on the ground that they stated the same

claims raised in the appellant's prior complaint. These allegedly

harassing incidents were the subject of the appellant's prior complaint.

However, rather than dismissing these allegations, the agency should

have consolidated the two complaints for processing as one continuing

hostile work environment claim. See Cobb, supra; and Toole v. EEOC,

EEOC Appeal No. 01964702 (May 22, 1997). To correct this error,

the Commission orders the agency to include incidents 1 through 3 in

the investigation of the appellant's hostile work environment claim.

This should not be an onerous burden on the agency for it may incorporate

the evidence obtained in the investigation of the prior complaint in

the investigative record for the instant complaint.

CONCLUSION

For the reasons stated above, the Commission REVERSES the agency's

dismissal of the appellant's October 31, 1996 complaint and REMANDS the

complaint for processing as ORDERED below.

ORDER (E1092)

The agency is ORDERED to 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 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 (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:

January 8, 1999

______________

Date Ronnie Blumenthal, Director

Office of Federal Operations