01a02022
10-05-2000
Largie L. Hairston and Charleta B. Hairston, Complainants, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Largie L. Hairston, Charleta B. Hairston v. United States Postal Service
01A02022, 01A02023, 01A02024, 01A02025, 01A02026, 01A02027, 01A03161
October 5, 2000
.
Largie L. Hairston and Charleta B. Hairston,
Complainants,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A02022, 01A02023, 01A02024, 01A02025, 01A02026, 01A02027,
01A03161
Agency Nos. 4-H-320-0222-99, 4-H-320-0161-99, 1-H-326-0041-99,
4-H-320-0119-99,
1-H-326-0038-99, 4-H-320-0160-99, 1-H-326-0015-00
DECISION
Complainants Largie L. Hairston (complainant-1), and Charleta B. Hairston
(complainant-2), filed timely appeals with this Commission from
agency decisions dismissing their complaints 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 Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The
Commission accepts the timely appeals for review, and consolidates the
cases pursuant to its discretion under 29 C.F.R. � 1614.606. The agency
characterized the five separate complaints of complainant-1<2> as alleging
that he was subjected to discrimination on the bases of race (Black),
disability (bilateral carpel tunnel syndrome (CTS)), national origin
(spouse is Asian), and in reprisal for prior EEO activity when:
On February 23, 1999, he was informed to report to the Beach Station
for limited duty;
On February 23, 1999,<3> he became aware that Human Resources Specialist
A sent his medical records to his supervisor without his authorization;
On February 23, 1999, he became aware that his supervisor obtained his
medical records and disclosed them to his physician;
On November 2, 1998, and June 21, 1999, Human Resources Specialist B
visited his physician; and
On November 9 and 10, 1999, he became aware that postal management
visited his physician.
For complainant-2, the agency characterized her two complaints<4> as
alleging that she was subjected to discrimination on the bases of race
(Asian), color (unspecified), disability (bilateral CTS/inflamation of
shoulder and neck), and national origin (Asian) when:
On February 23, 1999, she became aware that a Human Resources Specialist
sent her medical records to her husband's supervisor without her
authorization; and
On February 23, 1999, she became aware that her husband's supervisor
obtained her medical records and disclosed them to her physician.
In decisions issued on December 9, 1999,<5> and February 22, 2000,<6> the
agency dismissed complaints (1) and (5) for failure to state a claim and
complaints (2), (3), (4), (6), and (7) for untimely EEO Counselor contact.
Specifically, for complaints (1) and (5), the agency determined that
complainant-1 was not aggrieved because he did not suffer a personal loss
or harm with respect to a term, condition or privilege of employment as a
result of the incidents alleged. For complaints (2) and (3), the agency
determined that complainant-1's May 26, 1999 EEO Counselor contact was
untimely because it was more than forty-five days beyond the February 23,
1999 date he became aware of the alleged discrimination. For complaint
(4), the agency found that his August 26, 1999 EEO Counselor contact was
untimely because it was more than forty-five days beyond the June 21,
1999 date of the last alleged incident of discrimination. For complaints
(6) and (7), the agency also found that complainant-2's May 24, 1999, and
June 15, 1999, dates of EEO Counselor contact were more than forty-five
days beyond the February 23, 1999 date she became aware of the alleged
discrimination, making her contact with an EEO Counselor untimely.
The record shows that in attachments to his complaints, complainant-1
asserted that he was �Harassed continuously� when agency officials made
fraudulent statements, misrepresented facts, and violated his privacy
under the provisions of the Privacy Act, in order to convince his
physicians that he and his family had committed fraud and to controvert
his claim with OWCP. Complainant-1 specifically cited the events
surrounding complaints (1) through (4) as harassment, and also asserted
that as part of the harassment his vehicle was given a complete check,
he was refused a bid job, and he was reported as AWOL for not reporting
to work when he was out of town at a doctor's appointment. In the
attachments to his complaint for claim (5), complainant-1 additionally
stated that management �continued to harass me and my physicians with
their visits,� and that his claim is �Harassment and Retaliation for
exercising my rights . . . for [filing] EEO complaints.� The record
also shows that complainant-1's February 25, 1999 informal complaint and
attachments reference the circumstances surrounding his supervisor's visit
to his physician and the disclosure of personal medical information.
On appeal, complainant-1 asserts that his complaints (2) and (3) were
brought to the attention of the EEO Counselor on February 25, 1999,
as part of his counseling for complaint (1), although they were not
specifically identified as separate complaints. For complaint (4),
complainant-1 submits a copy of a July 26, 1999 request for medical
records from his physicians, and contends that he did not become aware
that the Human Resources Specialist visited his physicians until the
second week of August when he received the records. Complainant-2,
in her statements on appeal for complaints (6) and (7), asserts that
she did not become aware that she could file an EEO complaint against
violators of the Privacy Act until May 22, 1999. The agency has not
responded to either complainants' statements on appeal.
EEOC Regulation 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. The Commission has 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).
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.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). In determining whether a harassment complaint states a claim, the
Commission has repeatedly examined whether a complainant's harassment
allegations, when considered together and assumed to be true, were
sufficient to state a hostile or abusive work environment claim. Id.
Additionally, the Commission has repeatedly found that claims of a few
isolated incidents of alleged harassment usually are not sufficient to
state a harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); see Cobb, supra.
First, it is clear from the record that the agency mischaracterized
complainant-1's complaints. In his four complaints filed on the same
day (November 12, 1999), complainant-1 alleged a series of events which
allegedly occurred from November 1998 through June 1999, including those
listed above by the agency as complaints (1) through (4). Specifically,
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 the incidents
individually as separate complaints or ignored them altogether. Thus,
the Commission finds that the agency improperly treated the complaints in
a piecemeal fashion, when a fair reading of the record as a whole reveals
that complainant is alleging a pattern of ongoing harassment and a hostile
work environment. See Drake v. Department of the Air Force, EEOC Request
No. 05970689 (March 29, 1999); Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994). Moreover, the record
shows that the agency also treated complainant-1's later filed complaint
(5) in a piecemeal manner, when that complaint clearly described agency
management's visits as continued harassment that referenced his earlier
complaints. Instead of treating it individually, the agency should have
considered complaint (5) (filed on January 21, 2000) as an amendment to
his earlier harassment claim. See 29 C.F.R. � 1614.106(d). Consequently,
when complainant-1's complaints are viewed in the context of his claim
of harassment, they together state a claim and the agency's dismissal
of complaints (1) and (5) for failure to state a claim was improper.<7>
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Upon review of the record, we also find that the agency has improperly
dismissed complainant-1's complaints (2), (3), and (4) for untimely
EEO Counselor contact. Although the agency asserts in its decisions
that complainant-1's EEO Counselor contact for complaints (2) and (3)
was on May 26, 1999, the record indicates that complainant-1 brought
the issues of the release of his medical records to his supervisor
and their disclosure to his physician to the attention of the EEO
Counselor on February 25, 1999. As complainant-1's February 25, 1999
EEO Counselor contact was within forty-five days of the February 23,
1999 date he became aware of the alleged discrimination, complaints (2)
and (3) were timely. For complaint (4), complainant-1 asserts on appeal
that he was not aware that the Human Resources Specialist visited his
physicians until the second week of August when he received his medical
records from his physicians. The agency found that complainant initially
raised the matter in complaint (4) with an EEO Counselor on August 26,
1999. As the agency has provided no evidence rebutting complainant's
explanation for when he reasonably suspected discrimination, we find
that the agency's dismissal of complaint (4) was improper.
For complainant-2, however, we find that complaints (6) and (7) were
properly dismissed for untimely EEO contact. The record discloses
that complainant-2 became aware of the alleged discriminatory events on
February 23, 1999, but did not initiate contact with an EEO Counselor
until May 24, 1999, and June 15, 1999, respectively, which was beyond
the forty-five day limitation period. On appeal, complainant-2's
explanation that she was unaware that she could file an EEO complaint
concerning Privacy Act violations until a date past the limitation
period is insufficient to warrant an extension of the time limit for
initiating EEO contact. We therefore find that complaints (6) and (7)
were properly dismissed.
Accordingly, the agency's decisions to dismiss complainant-1's complaints
(1) - (5) are REVERSED and complaints (1) - (5), as defined herein,
are REMANDED to the agency for further processing in accordance with
this decision and the Order herein. The agency's decisions to dismiss
complainant-2's complaints (6) and (7) are AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims, as defined herein,
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
October 5, 2000
__________________
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.
2EEOC Appeal Nos. 01A02022, 01A02023, 01A02025, 01A02027, and 01A03161.
3The agency's decision, in what the record clearly shows is a mix-up
with the date of EEO Counselor contact, states May 26, 1999 as the date
of incident.
4EEOC Appeal Nos. 01A02024 and 01A02026.
5Concerning complaints (1-4), (6), and (7), filed on November 12, 1999.
6Concerning complaint (5), filed on January 21, 2000.
7We note that in finding that complainant-1 has stated a harassment claim,
we do not find that his claims concerning violations of the Privacy Act
state a claim. The Commission has held that jurisdiction over alleged
violations of the Privacy Act rests exclusively with United States
District Courts. See Story v. USPS, EEOC Appeal No. 01953767 (October
18, 1995); Bucci v. Department of Education, EEOC Request No. 05890289
(April 12, 1989)(alleged violation of the Privacy Act is outside the
purview of the EEO process).