Eddy R. Reed, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 19, 2009
0120083999 (E.E.O.C. Feb. 19, 2009)

0120083999

02-19-2009

Eddy R. Reed, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Eddy R. Reed,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120083999

Agency No. 4G-730-0065-08

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision, dated August 11, 2008, pertaining to his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. The Commission accepts the appeal in accordance with 29

C.F.R. 1614. 405.

Complainant contacted the EEO office claiming that his supervisor was

harassing him. Informal efforts to resolve complainant's concerns were

unsuccessful. Subsequently, complainant filed a formal complaint based

on disability and reprisal.1 The agency, in its decision, framed the

claim as follows:

On or about April 2008, the supervisor came to complainant's home when he

was sick; complainant was called a worthless piece of shit and harassed

in the mail room while he was on his break; and he was followed on his

off day and told that the reason he only had one eye is because someone

stuck a dick in his eye.

The agency dismissed the complaint for failure to state a claim.

The agency reasoned that although "complainant may have been upset

and offended" by the incidents, they were not sufficient severe or

pervasive to state a claim of discriminatory harassment. In support of

its decision, the agency cited to several Commission decisions concluding

that where employees are yelled at by supervisors, or grabbed by the

wrist, or called "ignorant", failed to state a claim. Lastly, with

respect to the basis of reprisal, the agency found that the alleged

events were unlikely to deter protected EEO activity.

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).

In determining whether a harassment complaint states a claim, the

Commission will examine whether the allegations, when considered together

and assumed to be true, are sufficient to state a hostile or abusive

work environment claim. See Estate of Routson v. National Aeronautics

and Space Administration, EEOC Request No. 05970388 (February 26,

1999). Even if harassing conduct produces no tangible effects, such as

psychological injury, a complainant may assert a cause of action if the

discriminatory conduct was so severe or pervasive that it created a work

environment abusive to complainant because of his race, gender, religion,

national origin or disability. See Rideout v. Department of the Army,

EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift

Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied

EEOC Request No. 05970995 (May 20, 1999).

In the instant case, the Commission finds that the agency erred in

dismissing the complaint for failure to state a claim. We find that

the alleged facts are sufficiently severe to state a claim of hostile

work environment. As noted above, complainant alleges several remarks

made by his supervisor, including one particularly severe comment which

specifically referenced his impairment.

Accordingly, the agency's decision to dismiss complainant's complaint

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 (K1208)

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 77960, Washington,

DC 20013. 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 (M1208)

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 77960,

Washington, DC 20013. 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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

February 19, 2009

__________________

Date

1 Although the basis of reprisal is not reflected in the agency's

decision, the agency does refer to the basis in its response to

complainant's appeal.

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0120083999

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083999

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