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.