01990854
01-18-2000
Felicia L. McArthur, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Felicia L. McArthur v. United States Postal Service
01990854
January 18, 2000
Felicia L. McArthur, )
Complainant, )
)
v. ) Appeal No. 01990854
) Agency No. 1-E-802-0016-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 6, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on
October 19, 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.<1> In her complaint, complainant
alleged that she was subjected to discrimination on the basis of race
(African-American) when:
The agency denied complainant's change-of-schedule request on February
18, 1998, while change-in-schedule requests were granted for the same
reason for a Caucasian male and Hispanic female.
Aggression training given on unspecified dates in February 1998,
induced discriminatory practices by its participants.
The agency dismissed claim (1) for stating the same claim raised in
Agency Number 1-E-802-0013-98, and dismissed claim (2) for failure to
state a claim. Specifically, the agency found that complainant was not
harmed by the incident alleged in claim (2). The agency explained that
complainant did not attend the training, and was not affected by other
employees who attended the training.
On appeal, complainant argues that she was harmed by the training
because it incorporated stereotypical values that debased her and
individuals of her race. Complainant attached a page from the Aggression
Management Training Manual, which states in part, "Native-American and
African-American cultures: Look you in the eye when they are ready
to fight." Complainant also included an internal agency newsletter
concerning "The Art of Aggression Management," which details other aspects
of the course, and states that management and mailhandler union stewards
from the Denver Bulk Mail Center attended the class.
Complainant also attached a letter she wrote to the agency, dated
September 26, 1998. In this letter, complainant explains that the
incidents occurring on February 18, 1998 (i.e. claim 1), should have been
raised in Agency No. 1-E-802-0013-98. The letter appears to confirm a
conversation concerning the difference between Agency Nos. 1-E-802-0013-98
and 1-E-802-0016-98.
In response, the agency asserts that no decision has been rendered in
Agency No. 1-E-802-0013-98, which currently is being investigated.
Therefore, the agency contends that claim (1) is pending before the
agency, and its dismissal in the present case was proper.
The record includes a copy of the Information-for-Precomplaint-Counseling
form for Agency No. 1-E-802-0016-98, dated March 4, 1998. Therein,
complainant explains that employees who attended the training told
complainant not to look them in the eye or they will think she is "ready
to fight." Complainant acknowledges in the form that the comments were
made in jest, but asserts that they were extremely insulting.
The record contains a copy of the Counselor's Report for Agency
No. 1-E-802-0016-98, dated August 11, 1998, which concerns training.
The report does not mention claim (1). The record also includes the
formal complaints for both Agency Nos. 1-E-802-0013-98 (complaint dated
September 26, 1998) and 1-E-802-0016-98 (complaint dated August 18, 1998).
Each complaint raises both claims (1) and (2).
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides that an agency may dismiss
a matter that is pending before or has been decided by the agency or
Commission. In counseling for Agency No. 1-E-802-0016-98, complainant
raised issue (2), but not issue (1). In her formal complaint, complainant
raised both claims in Agency No. 1-E-802-0016-98, and again in Agency
No.1-E-802-0013-98. Subsequently, by letter dated September 26, 1998,
complainant informed the agency that claim (1) should have been raised
in Agency No. 1-E-802-0013-98. The agency contends without dispute that
Agency No. 1-E-802-0013-98 is still pending at the investigative stage.
Accordingly, the agency properly dismissed claim (1) for stating the
same claim pending in Agency No. 1-E-802-0013-98.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) also 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 22, 1994).
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 (March
13, 1997).
In claim (2), complainant does not take issue with the comments of her
co-workers. Rather, the Commission finds that complainant is alleging
that the training class itself, which provided materials encouraging
blatant stereotypes against Native-Americans and African-Americans,
created a hostile work environment at complainant's work place.
The Commission finds that the training materials include remarks so
severe in their insensitivity, and pervasive in their distribution,
that they create a hostile work environment. Therefore, the agency's
dismissal of claim (2) was improper.
CONCLUSION
Accordingly, the agency's dismissal of claim (1) is AFFIRMED. The
agency's dismissal of claim (2) is REVERSED and claim (2) is REMANDED
for further processing.
ORDER (E1199)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claim 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (T1199)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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:
January 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.