0120091744
08-27-2009
John W. Cross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John W. Cross,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091744
Agency No. 4B-018-0085-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 18, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), 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. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of race (Native American), age
(DOB: July 27, 1956), and reprisal for prior protected EEO activity when:
1. On June 27, 2008, complainant's change of schedule was denied;
2. On June 30, 2008, complainant was given a pre-disciplinary interview;
and
3. On July 2 and 23, 2008, complainant was asked to provide medical
documentation for his pre-approved sick leave requests.
The agency dismissed issued a partial acceptance and partial dismissal
on December 3, 2008. The agency accepted claim (1) and dismissed
claims (2) and (3) for failure to state a claim. The agency began its
investigation regarding claim (1). On January 14, 2009, complainant
was sent an affidavit package by the EEO Investigator. Complainant
was asked to return the package within15 calendar days of its receipt.
The agency indicated that the affidavit form indicated that if complainant
failed to return the forms, the matter would be dismissed pursuant to
29 C.F.R. � 1614.107(a)(7). When the agency determined that it could
not proceed with the investigation. Therefore, on February 18, 2009,
the agency issued its final decision dismissing the complaint.
This appeal followed. The agency argues that its dismissal was
appropriate.
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides for the
dismissal of a complaint where the agency has provided the complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant has failed to respond to
the request within 15 days of its receipt or the complainant's response
does not address the agency's request, provided that the request included
a notice of the proposed dismissal. The regulation further provides
that, instead of dismissing for failure to cooperate, the complaint may
be adjudicated if sufficient information for that purpose is available.
Under the circumstances in this case, we find that the agency's dismissal
was improper. We note that the agency failed to show why complainant's
affidavit was necessary for the further processing of the complaint.
The agency has not claimed that the complaint was vague, and the agency
found that there was sufficient information in the record to be able to
define the complaint and accept it for investigation. Moreover, we note
that complainant's complaint, along with the EEO Counselor's Report,
addressed the incident of alleged discrimination, with reference to
the responsible agency official by name, the bases on which he alleged
discrimination, and the corrective action sought.
The Commission has held that as a general rule, an agency should not
dismiss a complaint when it has sufficient information on which to base
an adjudication. See Ross v. United States Postal Service, EEOC Request
No. 05900693 (August 17, 1990); Brinson v. United States Postal Service,
EEOC Request No. 05900193 (April 12, 1990). It is only in cases where
the complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission has
allowed a complaint to be dismissed for failure to cooperate. See Card
v. United States Postal Service, EEOC Request No. 05970095 (April 23,
1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451
(December 22, 1994). Therefore, under the circumstances, we find that the
agency's dismissal of complainant's complaint for failure to cooperate was
improper. In addition, the Commission cautions complainant to cooperate
with the agency's investigation of the complaint.
In addition to the dismissal of claim (1), the agency dismissed claims
(2) and (3) for failure to state a claim. The regulation set forth at 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).
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.
Upon review, we find that complainant alleged that he was subjected
to harassment which created a hostile work environment. Instead of
treating these events as incidents of the claim of harassment, however,
the agency looked at them individually. Thus, we find that the agency
acted improperly by treating matters raised in complainant's complaint
in a piecemeal manner. See Meaney v. Department of the Treasury, EEOC
Request No. 05940169 (November 3, 1994) (an agency should not ignore the
"pattern aspect" of a complainant's claims and define the issues in a
piecemeal manner where an analogous theme unites the matter complained
of). Consequently, when complainant's claims are viewed in the context of
complainant's complaint of harassment, they state a claim and the agency's
dismissal of those claims for failure to state a claim was improper.
Accordingly, we find that the agency's dismissal of the complaint was
inappropriate. Therefore, the dismissal is reversed and the complaint
as a whole is remanded for further investigation in accordance with the
order below.
ORDER (E0408)
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 (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 27, 2009
__________________
Date
2
0120091744
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091744