Jacky R. Myers, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 28, 2000
01A05580 (E.E.O.C. Nov. 28, 2000)

01A05580

11-28-2000

Jacky R. Myers, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Jacky R. Myers v. U.S. Postal Service

01A05580

November 28, 2000

.

Jacky R. Myers,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A05580

Agency No. 4-D-290-0045-00

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated August 11, 2000, dismissing his complaint of unlawful

employment discrimination brought under Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

In his complaint, complainant claims that he was subjected to harassment

and discrimination on the bases of age, disability, and reprisal when:

On March 7 & 10, 2000, during a route inspection, he was instructed to

work the mail in a manner which violated the union agreement, causing

him stress, anxiety, and the need to use eight hours of sick leave;

Between January 2000 and July 2000, the co-worker who worked complainant's

route on his days off neglected his duties, causing complainant extra

work and performance problems;

During this same period, and on-going, the above co-worker harassed him

and made belittling comments to him;

On two occasions in March 2000 and April 2000, he was harassed at his desk

by his supervisor about working mail and pulling it down for part-time

flexible carriers to take;

From April 2000 to July 2000, he was given PS Form 3996 to fill out for

an hour on his route, but the 204B supervisors would only allow him

thirty minutes although they knew that his route was overburdened; and,

On May 8, 2000, he received a letter of warning for unauthorized use

of overtime.

In its decision, the agency determined that claims 4, 5, and 6, were

improperly included in complainant's formal complaint because he did

not discuss these matters with the EEO Counselor, and they were not

like or related to the first three claims. Instead, the agency advised

complainant to contact an EEO Counselor regarding claims 4, 5, and 6,

informing him that his initial contact date would be July 26, 2000, the

date he responded to the agency's request for additional information

regarding the instant complaint. The agency dismissed claims 1, 2,

and 3 for failure to state a claim.

Although the agency did not dismiss claims 4, 5, and 6, pursuant to 29

C.F.R. � 1614.107(a)(2), it nonetheless declined to consider them as

part of the instant complaint because they were not like or related

to the first three claims. Contrary to the agency's determination,

the Commission determines that all of the incidents in the six

claims enumerated above are related because they arose during the

same time frame; primarily concern complainant's working conditions

and performance; and all of the adverse incidents were attributed

to complainant's supervisor and a certain co-worker. Furthermore,

the Commission determines that the agency erred in failing to frame

the instant complaint as a claim of harassment, which complainant

clearly set forth in both EEO counseling and in his formal complaint.

Moreover, the Commission determines that the agency improperly fragmented

complainant's harassment claim by excluding claims 4, 5, and 6, instead

advising complainant to file a separate complaint. See Ferguson

v. Department of Justice, EEOC Request No. 05970792 (March 30, 1999)

and Smith v. Department of Transportation, EEOC Request No. 05980268

(May 26, 1999). The Commission has noted that when subsequent events

or instances involving the same claim are identified by a complainant,

they should not be filed as separate complaints, but should be treated as

part of the first claim. See 64 Fed. Reg. 37,648 (1999). Accordingly, we

determine that the agency improperly fragmented complainant's harassment

claim by excluding claims 4, 5, and 6, and we now include these claims

in determining whether complainant has set forth an actionable claim of

harassment due to a hostile work environment.

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).

The Commission determines that complainant is claiming that he was

subjected to a hostile work environment when, during an approximately six

month period from January 2000 to July 2000: he experienced a variety of

adverse working conditions/requirements that caused him stress and anxiety

so severe that it resulted in the need to take sick leave in March 2000

(claims 1, 2 and 5); he was subjected to frequent and ongoing derogatory

remarks from a co-worker (claim 3); his supervisor made harassing remarks

regarding his work performance (claim 4); and, he was issued a letter

of warning regarding his work performance (claim 6).

Under the circumstances, considering all of the claimed harassing

incidents, actions, and remarks, and considering them together in the

light most favorable to complainant, the Commission finds that they are

sufficient to state an actionable claim of harassment creating a hostile

work environment.

Accordingly, the agency's decision is hereby REVERSED. The complaint is

REMANDED for further processing as a complaint of harassment in accordance

with this decision and 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

November 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.