Janice L. Formyduval, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01992903 (E.E.O.C. Feb. 4, 2000)

01992903

02-04-2000

Janice L. Formyduval, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Janice L. Formyduval, )

Complainant, )

)

v. ) Appeal No. 01992903

) Agency No. 4D270017698

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

INTRODUCTION

On March 1, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) 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., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.<1>

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed complainant's

complaint for failure to state a claim.

BACKGROUND

On October 21, 1998, complainant filed a formal complaint alleging that

she was the victim of unlawful employment discrimination on the bases

of race (white), sex (female), age (over 40), and retaliation (prior

EEO activity). Specifically, complainant alleged that, in August 1998,

she informed management of a male coworker (C-1), who consistently

entered or lingered around her work area, which caused her stress, and

management failed to take corrective action.<2> On February 3, 1999,

the agency issued a final decision dismissing complainant's complaint

for failure to state a claim. This appeal followed.

ANALYSIS AND FINDINGS

Failure to State A Claim

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 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 21,

1994).

Where a complainant does not suffer a present harm or loss regarding

a term, condition, or privilege of employment, he or she may still be

aggrieved where the complaint claims, taken together and treated as

true, are sufficient to state a hostile or abusive environment claim.

See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). A hostile or abusive work environment claim requires that a

complainant allege facts which, if proven true, may indicate that the

complainant was subjected to harassment that was severe or pervasive

enough to alter the conditions of his or her employment. Cobb, at 3.

In making such a determination, the Commission has considered �whether

a reasonable person in the complainant's circumstances would have found

the alleged behavior to be hostile or abusive.� Id.

To substantiate her harassment claim, complainant alleged that,

in August 1998, management failed to take corrective action when she

reported the consistent, unnecessary presence of C-1 in her work area.

This alone is not sufficient to state a harassment claim. Id. at 2.

However, because Agency number 4D-270-1090-96 is currently pending before

the agency for a supplemental investigation and involves some of the

same alleged discriminating officials and C-1, we find that the agency

should process this complaint and the above pending complaint jointly.

64 Fed. Reg. 37,644, 37,661 (1999)(to be codified and hereinafter referred

to as 29 C.F.R. � 1614.606).

CONCLUSION

Based on the foregoing, we VACATE the agency's dismissal of complainant's

complaint. Her complaint will be REMANDED for processing in accordance

with this decision and the ORDER below.

ORDER (E1199)

The agency is ORDERED to consolidate Agency numbers 4D-270-0176-98 and

4D-270-1090-96 and process them jointly. The agency is ORDERED to

process the remanded claims 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) 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

(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:

Feb. 4, 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 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.

2According to the record, complainant filed two prior EEO complaints

claiming harassment. The first, filed in April 1995, claimed sexual

harassment by male coworkers, including C-1. Complainant alleged

she withdrew the first complaint because management required her

to do so before it would conduct an administrative investigation

of the matter. Complainant filed a second complaint, Agency number

4D-270-1090-96, on September 17, 1996 also involving male coworkers,

including C-1. The agency issued a FAD finding no discrimination and

complainant appealed. The agency's decision was vacated and remanded

for a supplemental investigation regarding comparator information and

withdrawal of the first complaint.