01982100
04-08-1999
George G. Banks, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
George G. Banks v. United States Postal Service
01982100
April 8, 1999
George G. Banks, )
Appellant, )
)
v. ) Appeal No. 01982100
) Agency No. 4F-945-0223-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
December 15, 1997 dismissing a portion of appellant's complaints for
failing to state a claim. The agency consolidated three complaints in
the December 15, 1997 decision. The agency defined the three complaints
as alleging:
In September or October 1996 appellant became aware that appellant's
position as Postmaster Berkeley was being offer to another person.
On January 6, 1997 appellant was issued a Letter of Warning by the Acting
Manager, Post Office Operations (MPOO).
On February 19, 1997, the MPOO met with appellant, asked appellant if
the conference room was "bugged," inquired into appellant's retirement
plans, and asked what it would take for appellant to leave the Berkeley
Post Office with dignity and respect.
On February 27, 1997, appellant received a memo from the MPOO instructing
appellant to submit a compliance report by February 28, 1997. This memo
was sent in anticipation that appellant would not be able to comply and
that this would be a basis for further disciplinary action.
On April 16, 1997, appellant was issued a memo by the MPOO stating that
appellant had failed to follow instruction and that appellant's behavior
and performance were unacceptable and would not be tolerated.
On April 24, 1997, appellant was issued a memorandum by the MPOO stating
that appellant had failed to follow instructions.
On May 16, 1997 appellant was issued a Proposed Letter of Warning in
Lieu of Time-Off Suspension for repeated failure to follow instructions.
On August 5, 1997, appellant received a Letter of Decision upholding
the proposed Letter of Warning.
On June 6, 1997, the MPOO sent appellant a letter informing appellant
that appellant no longer had authority to resolve financial matters in
his office.
On June 9, 1997 appellant was issued a Performance Improvement Plan.
On July 11, 1997, appellant was issued another memorandum by the MPOO
for failure to follow instructions.
During Quarter 2 FY97 an additional component was added to the "Voice
of the Employee" performance assessment which is entitled "Admin."
This component was added in order to give the MPOO a subjective tool
with which he could manipulate the overall score of his office thereby
giving the appearance that his office is doing worse than other Level
24 offices.
On August 11, 1997 appellant received a memorandum from the MPOO stating
that appellant failed to follow instructions and had a total disregard
for policy and procedures.
On July 25, 1997, the MPOO refused to concur with appellant's selection
of Supervisor A to fill the vacant Manager, Customer Services position
in Berkeley.
On September 14, 1997 appellant was harassed by being issued a memorandum
regarding a Function 4 audit.
On September 17, 1997, appellant was issued a Performance Improvement
Plan.
The agency dismissed allegations 1, 3, 9, 11, 13, and 15, for failing
to state a claim.
The Commission finds that in two of the three complaints which were
combined in the agency's December 15, 1997 decision, appellant alleged
that he was being harassed by the MPOO. By letter dated January 22, 1998
the agency informed appellant that it was investigating allegations 2,
4 - 8, 10, 12, and 14 from 4F-945-0223-97 (the consolidated complaint).
In the January 22, 1998 letter the agency also stated that it was
consolidating 4F-945�0059-98 with 4F-945-0223-97 and that the agency
was accepting 4F-945-0059-98 for investigation. The agency defined the
allegations in 4F-945-0059-98 as follows:
On August 8, 1997 appellant was issued a memorandum of irregularities.
On November 19, 1997, appellant was informed of his unacceptable merit
rating and exclusion from EVA payment.
On the complaint form for 4F-945-0059-98 appellant specifically stated
that he was being subjected to a hostile work environment.
The Commission finds that appellant is alleging that he was subjected
to a discriminatory hostile work environment. The Commission finds that
appellant has stated a claim of harassment in the consolidated complaint.
Appellant has sufficiently alleged that he was aggrieved (in the form
of a hostile work environment) by the disciplinary actions, the written
correspondence informing appellant that he failed to follow instructions,
and the placement of appellant on performance improvement plans.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13,
1997). Therefore, because we find that the consolidated complaint states
a claim of harassment, we find that the agency's decision dismissing a
portion of the complaint for failing to state a claim was improper.
The agency's decision dismissing allegations 1, 3, 9, 11, 13, and 15 is
REVERSED and we REMAND the matter to the agency for further processing
in accordance with this decision and applicable regulations.
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 acknowledgement 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. �l6l4.604(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:
April 8, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations