Diana Holmes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 13, 2000
01A05487 (E.E.O.C. Dec. 13, 2000)

01A05487

12-13-2000

Diana Holmes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Diana Holmes v. U.S. Postal Service

01A05487

December 13, 2000

.

Diana Holmes,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A05487

Agency No. 4-F-956-0077-00

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated August 11, 2000, dismissing her complaint of unlawful

employment discrimination brought under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The Commission

accepts the appeal in accordance with 29 C.F.R. � 1614.405.

On May 8, 2000, the United States District Court for the Eastern

District of California issued an Order in favor of the agency regarding

complainant's harassment claim brought under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791, et seq. The court determined

that complainant had been subjected to a hostile work environment due to

the abusive conduct of certain co-workers; however, the court determined

that because she could not prove that the conduct was motivated by

sexual animus, she failed to prevail in her sexual harassment claim.

The court found that complainant had shown that the conduct was motivated

by racial animus, but that she again failed to prevail because she

could not demonstrate that she properly informed management officials

of the harassment.

On April 13, 2000, while the court action was still pending, complainant

contacted an EEO Counselor contending that she continued to experience a

hostile work environment. Complainant indicated that several co-workers,

including the Postmaster, made various statements and comments pertaining

to the lawsuit and/or other pending EEO actions; refused to speak to her;

treated her rudely; and in general ostracized her in the work place.

When these concerns were not addressed during EEO counseling, complainant

filed a formal complaint against the agency on May 11, 2000, claiming

that this on-going harassment was motivated by reprisal.<2>

In its final decision, the agency dismissed the complaint for failure to

state a claim. The agency found that complainant was not subjected to a

hostile work environment and was not harmed by what amounted to no more

than co-worker statements and comments unaccompanied by an agency action.

On appeal, complainant argues that certain co-workers, including two named

in the law suit, shunned her; made disparaging comments about her EEO

activity; or treated her rudely, to the extent of creating a hostile work

environment, and that this was, in fact, a continuation of the harassment

she complained of in the lawsuit. Complainant additionally argues that

the co-workers in question carried out this conduct not only with the

knowledge of agency management, but that certain management officials

encouraged the conduct in reprisal for filing the lawsuit and other EEO

complaints. Complainant further argues that in dismissing her complaint

the agency failed to view her claim in the context of the lawsuit,

and her other EEO complaints, and, in essence, dismissed the instant

complaint in a vacuum. The agency offers no response to the appeal.

In this case, complainant claims that she is the victim of unlawful

employment discrimination solely on the basis of reprisal. The Commission

views reprisal claims with a broad view of coverage. Under present

Commission policy, claimed retaliatory actions which can be challenged are

not restricted to those which affect a term or condition of employment.

Instead, a complainant is protected from any adverse treatment which

is reasonably likely to deter the employee, or others, from engaging in

protected activity. The Commission has stated that adverse actions need

not qualify as "ultimate employment actions" or materially affect the

terms and conditions of employment to constitute retaliation. See EEOC

Compliance Manual Section 8, "Retaliation;" No. 915.003 (May 20, 1998),

p. 8-15.

Moreover, in Harris v. Forklift Systems, Inc., 510 U.S. 17,21 (1993),

the Supreme Court found that harassment is actionable, even absent a claim

that an agency's action harmed complainant in a specific term, condition

or privilege of employment, as long as the complainant can otherwise

demonstrate that the conduct was engaged in with the purpose of creating

a hostile work environment, and that the conduct is sufficiently severe

or pervasive as 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).

After careful review, we find that complainant has stated an actionable

claim of retaliatory harassment. As set forth in its final action,

the agency acknowledges that complainant identifies seven incidents

of �adverse treatment' by both co-workers and the Postmaster, in an

approximate one week period, during the pendency of the referenced

lawsuit, which also concerned co-worker harassment condoned and

encouraged by management. We find that complainant additionally claims

that these incidents are part of an on-going pattern of harassment, with

reference to both the lawsuit and other EEO complaints. Accordingly,

we conclude that the agency improperly dismissed the instant complaint,

and we REVERSE that determination and REMAND the complaint to the agency,

as framed herein, for further processing as set forth in the ORDER below.

ORDER (E0900)

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 (K0900)

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)(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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 13, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Although in its final decision the agency states that the complaint was

based on race, sex, disability, and reprisal, we note that the formal

complaint only claims reprisal as a basis.