01993332
11-08-1999
Jeffrey Fleming, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro) ______________________________)
Jeffrey Fleming, )
Appellant, )
)
v. ) Appeal No. 01993332
) Agency No. 4B-018-0006-99
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(N.E./N.Y. Metro) Agency. )
______________________________)
DECISION
On March 19,1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received on February 22, 1999,
pertaining to a complaint of unlawful employment discrimination
pursuant to Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The Commission accepts appellant's appeal in
accordance with EEOC No. 960.001.
The record reflects that on October 22, 1998, appellant initiated contact
with an EEO Counselor. During the counseling period, appellant alleged
that, (1) on September 4, 1998 he was called a �big mouth troublemaker� by
a supervisor, (2) on September 9, 1998 the Postmaster told him �there is
a different standard for management and craft and he could see a doctor
or resign� and (3) on October 2, 1998 he was issued a letter of warning
for failure to be in regular attendance.
On or about December 28, 1998, appellant filed a formal complaint,
alleging that he was the victim of unlawful employment discrimination
on the basis of metal disability. Appellant's complaint was comprised
of the matter for which he underwent EEO counseling, discussed above.
On February 19, 1999, the agency issued a final decision dismissing
above allegations one and two for failure to state a claim. Because the
agency found that appellant failed to establish how a term, condition
or privilege of his employment was harmed.
On appeal, appellant alleges that he has been the subject of harassment
and that the above allegations evidence a hostile work environment.
Also, appellant states that he has been threatened with violence
repeatedly by a co-worker, thus adding to the hostile work environment.
In the instant case, the agency argues that appellant has failed to
state a claim as to allegations one and two. 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 and determine whether they are sufficient to state
a claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Here, the agency has failed to consider the above
incidents together and in the light most favorable to the complainant
to determine if they are sufficient to state a claim of harassment.
Therefore, the agency shall clarify the specific incidents of harassment,
including the threats of violence from a co-worker, and make a
determination as to whether appellant's allegations of harassment rise
to a level of harassment as defined in Cobb, supra..<1>
Accordingly, the agency's decision to dismiss allegations one and two
for failure to state a claim was improper and is REVERSED. Appellant's
complaint is REMANDED to the agency for further processing in accordance
with this decision and the Order below. Both parties are advised that
the Commission's decision herein, is not a decision on the merits of
appellant's complaint.
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 acknowledgment 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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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:
November 8, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1The agency, in developing the overall claim of harassment,
must consider all the allegations together and not in a piecemeal
fashion. Therefore, it is appropriate for the agency to consider
the allegation raised on appeal as part of the overall claim
of harassment. See Meaney v. Department of the Treasury, EEOC
Request No. 05940169 (November 3, 1994)