01991921
12-28-2000
Edward J. Monahan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Edward J. Monahan v. U.S. Postal Service
01991921
December 28, 2000
.
Edward J. Monahan,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991921
Agency No. 4-E-800-0273-98
DECISION
Upon review, the Commission finds that the agency improperly dismissed
the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(1).<1>
According to the record, complainant contacted an EEO Counselor on June
24, 1998, after receiving a Letter of Warning (LOW) on June 17, 1998.
The agency then reduced this discipline to an �Official Discussion� on
July 1, 1998. Complainant filed a formal complaint on November 24, 1998,
claiming discrimination on the bases of age and reprisal (for filing
prior EEO complaints on the same bases as herein), contending that he
had been harmed by the LOW, and referencing �circumstances surrounding
this matter.�
In its decision, the agency dismissed the complaint on the grounds
of failure to state a claim finding that complainant was not harmed
in a term or condition of employment because the LOW was reduced to an
Official Discussion. Complainant now appeals this determination, arguing
that the LOW was unwarranted and was issued for the sole purpose of
harassing him. Complainant asks that the claim in the instant complaint
�not be broken off from the whole� referencing the many claims in his
other EEO complaints.
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, disabling condition, or in reprisal for prior
EEO activity. 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 this case, we find that complainant was harmed when the agency
issued him the LOW at issue, notwithstanding the fact that it was later
reduced to an Official Discussion, and that he states a claim for
this reason. Furthermore, complainant very clearly frames the instant
complaint as a claim of harassment, which the agency fails to address.
Historically, complainant contends that his supervisor has engaged in
many on-going adverse acts against him for the purpose of harassing him,
identifying several prior and pending EEO complaints in addition to the
instant claim. Complainant avers that taken altogether, these actions
constitute a hostile work environment. Based on these statements, we
find that complainant has set forth an actionable claim of harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Moreover, regardless of the ultimate disposition of
complainant's related EEO complaints, the incidents identified in those
complaints must be considered background evidence when evaluating the
instant harassment claim.<2>
Accordingly, the agency's final decision dismissing complainant's
complaint for failure to state a claim is REVERSED. The complaint is
hereby REMANDED for further processing in accordance with 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 28, 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.
2In Monahan v. U.S. Postal Service, EEOC Appeal No. 01973771 (January 28,
1998), the Commission upheld the agency's dismissal of the complaint,
which alleged improper telephone call screening, on the grounds of
failure to state a claim. The Commission also denied complainants'
request for reconsideration of this decision. See Monahan v. U.S. Postal
Service, EEOC Request No. 05980426 (June 23, 1999). Additionally,
Monahan v. U.S. Postal Service, EEOC Appeal No. 01995814, is currently
pending a decision at the Commission, regarding complainant's appeal of
the agency's decision finding no discrimination on the bases of age and
reprisal with respect to claimed improper restrictions on complainant's
use of headphones and the telephone.