01990940
01-28-2000
Henry Cabone, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Henry Cabone v. United States Postal Service
01990940
January 28, 2000
Henry Cabone, )
Complainant, )
)
v. ) Appeal No. 01990940
) Agency No. 1-F-933-0015-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 10, 1998, complainant appealed the agency's dismissal of his
June 25, 1998 formal complaint of discrimination.<1> Complainant received
the dismissal on October 16, 1998, and therefore, his appeal is accepted
as timely. See EEOC Order No. 960, as amended. In the formal complaint,
complainant alleged that he was subjected to harm in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. on the basis of physical disability (thumb,
elbow and shoulder), and in reprisal for prior EEO activity when:
On March 22, 1998, complainant's supervisor breached complainant's
EEO settlement by referring to complainant's last chance agreement;
On March 25, 1998, the supervisor told another employee not to talk
to complainant;
On April 1, 1998, complainant told someone that he had won the lotto,
and the supervisor stated that now complainant could drop his EEO
complaint;
On April 29, 1998, the supervisor barged around the corner, startled
everyone, claimed that he saw complainant make a sudden movement and
heard a cup containing ice strike the floor;
On May 13, 1998, complainant was issued a
Notice-of-Fourteen-Day-Suspension for failing to follow instructions
and committing an unsafe act; and
On May 28, 1998, the May 13, 1998 Notice was rescinded.
In its final decision, the agency dismissed claims (1), (2), (3), (4), and
(6) for failure to state a claim, and dismissed claim (5) for being moot.
Specifically, the agency found that issue (1) was never properly raised
as a notice of breach as required by the regulations, and issues (1) -
(4) and (6) did not render complainant aggrieved. Regarding claim (5),
the agency found that complainant already obtained all possible relief
when his suspension was unilaterally rescinded before complainant began
to serve the suspension.
On appeal, complainant argues that the agency incorrectly characterized
his claims in order to minimize the appearance of discrimination.
Complainant attached, inter alia, a letter dated June 16, 1998, in which
complainant argues that the manager never saw complainant with a cup,
nor asked him if the cup was his. Complainant explained that two files,
Agency Nos. 1-F-933-0015-98 and 1-F-933-0012-98, were consolidated into a
single complaint; complainant attached a copy of both files to his appeal.
In the Counselor's Report for Agency No. 1-F-933-0012-98, complainant
sought, inter alia, an end to the harassment he suffered, and compensation
for all lost overtime opportunities, night differential, and Sunday
premium pay. In his Information-for-Precomplaint-Counseling form dated
May 4, 1998, complainant alleged breach of a settlement agreement because
an agency official mentioned his last chance agreement. The record does
not contain a copy of the settlement agreement.
The record includes a copy of the Notice-of-Suspension, dated May 13,
1998. In this notice, the agency informed complainant that he was being
disciplined because he had been told repeatedly to keep beverages out of
the work room, but had repeatedly violated the rule. The notice stated
that complainant's suspension would begin on June 10, 1998. The record
also includes a copy of the letter rescinding the suspension, dated May
28, 1998.
ANALYSIS AND FINDINGS
If a complainant believes that the agency failed to comply with the terms
of a settlement agreement, then the complainant shall notify the EEO
Director, in writing, of the alleged noncompliance within thirty days.
See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
cited as 29 C.F.R. �1614.504(a)). The agency contends that complainant
never notified it of the alleged noncompliance as contemplated in the
regulations. However, the agency acknowledges receipt of complainant's
request for counseling alleging breach, and mentions the alleged breach
in the Counselor's Report. The Commission finds that complainant clearly
placed the agency on notice of his allegations of breach in his request
for counseling.
Furthermore, we note that complainant alleged noncompliance with a
settlement agreement in Agency No. 1-F-933-1014-96, pending on appeal
as 01985223. Neither the settlement agreement itself, nor complainant's
claim of breach in the prior complaint mentions a "last chance agreement."
Further, the record does not contain a copy of the settlement agreement
concerning the subject last chance agreement � it is unclear if the
present complaint involves the same settlement agreement or the same
allegations of breach. Therefore, the Commission is unable to determine
whether complainant's claim of breach should properly be dismissed for
stating the same claim as already being processed.
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, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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 (Apr. 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 (Mar. 13,
1997).
The agency consolidated the claims from Agency Nos. 1-F-933-0012-98 and
1-F-933-0015-98, presumably because the complaints involved a pattern of
ongoing harassment from the same supervisor. The agency then departed
from its proper consolidation, and proceeded to piecemeal the claim
into its factual incidents by addressing each individually. See Meaney
v. Department of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994)
(agency should not ignore the pattern aspect of a harassment claim).
The fact that the claims were once raised as separate complaints does
not foreclose an analysis of whether, when considered together, they
state an overriding claim of harassment. See Cobb v. Department of
the Treasury, supra. (considering claims from several complaints/agency
numbers together). The Commission finds that complainant has stated a
claim of hostile work environment harassment.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �
1614.107(a)(5)) provides for the dismissal of a complaint, or portions
thereof, when the issues raised therein are moot. To determine whether
the issues raised in complainant's complaint are moot, the factfinder
must ascertain whether (1) it can be said with assurance that there is
no reasonable expectation that the alleged violation will recur; and
(2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged discrimination. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC
Request No. 05970343 (July 10, 1998). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that
he has incurred compensatory damages, and that the damages are related
to the alleged discrimination. Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (Nov. 12, 1992), req. for recons. den., EEOC
Request No. 05930306 (Feb. 1, 1993). Should complainant prevail on this
complaint, the possibility of an award of compensatory damages exists.
See Glover v. United States Postal Service, EEOC Appeal No. 01930696
(Dec. 9, 1993). Because complainant requested compensatory damages, the
agency should have requested that complainant provide some objective proof
of the alleged damages incurred, as well as objective evidence linking
those damages to the adverse actions at issue. See Allen v. United
States Postal Service, EEOC Request No. 05970672 (June 12, 1998); Benton
v. Department of Defense, EEOC Appeal No. 01932422 (Dec. 3, 1993).
In the present complaint, complainant clearly requested compensatory
damages (premium pay, overtime lost, etc. . . ), but the agency failed
to address this issue in its dismissal of claim (5) on the grounds
of mootness. Therefore, the agency's dismissal of claim (5) was improper.
CONCLUSION
Accordingly, the agency's dismissal of claim (1) is VACATED, and the
claim of breach is REMANDED for further investigation. The agency's
dismissal of complainant's claim of harassment in issues (2) - (6)
is REVERSED, and the claim is REMANDED for further processing.
ORDER
The agency is ORDERED to process the remanded harassment claim (issues
(2) - (6)) 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 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)
calendar days of receipt of complainant's request.
Regarding the claim of breach (issue (1)), the agency must process
the claim pursuant to 29 C.F.R. �1614.504. Complainant's initial
counselor contact alleging breach (May 4, 1998) shall be considered the
date complainant gave proper notice of breach to the agency. Within
thirty-five (35) calendar days of the date this decision becomes final,
the agency must determine whether the agency breached the settlement
agreement.
A copy of the agency's letter of acknowledgment to complainant, a copy of
the notice that transmits the investigative file and notice of rights,
and a copy of the agency's determination regarding complainant's claim
of breach 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 (R1199)
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:
January 28, 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.