01991621_2
01-24-2000
Larry W. Cole, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Larry W. Cole, )
Appellant, )
)
v. ) Appeal Nos. 01991621 and 01991622<1>
) Agency Nos. 4K-210-0098-98 and 4K-210-0059-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 16 and 21, 1998, complainant, through his attorney, filed
timely appeals of final agency decisions, which were dated November 6,
1998, and November 9, 1998, respectively, dismissing his two complaints
for failure to state a claim.<2>
In his July 2, 1998 complaint, Agency No. 4K-210-0059-98, complainant
alleged harassment and a hostile work environment on the part of agency
managerial officials when; (1) on December 12, 1997, he was accused of
discussing how much money he had won from the agency and disrupting the
operation, and his supervisor yelled to him �get up, I'm going to whip
your ass�; (2) on January 22 and 23, 1998, his supervisor asked to see his
driver's license; (3) on January 26, 1998, he was told that the manager
was putting him in for removal due to driving on a suspended license;
and (4) on January 30, 1998, the supervisor followed him on his breaks.
Complainant indicated that as a result of harassment, verbal abuse,
and a hostile work environment by his supervisor, manager, and acting
manager, he went into depression, which forced him to be out of work for
several days under his doctor's order. Complainant indicated that he
also incurred medical expenses and was not paid for two lost work days.
As relief, complainant requested, inter alia, compensatory damages and no
further harassment. The record indicates that complainant filed several
complaints in 1997 and 1998, against the same responsible officials
alleging harassment and a hostile work environment.
In its November 6 and 9, 1998 final decisions, the agency dismissed
both complaints for failure to state a claim. The agency stated that
complainant failed to show that he was aggrieved with regard to the
alleged claims. The EEO Counselor's Report indicates that as a result of
the December 12, 1997 incident, the complainant's supervisor was placed
in an Emergency Off-Duty Status pending removal for his actions.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1)) provides that prior to a
request for a hearing in a case, the agency shall dismiss an entire
complaint that fails to state a claim pursuant to 29 C.F.R. � 1614.103.
In order to establish standing initially under 29 C.F.R. � 1614.103,
a complainant must be either an employee or an applicant for employment
of the agency against which the claims of discrimination are raised.
In addition, the claims must concern an employment policy or practice
which affects the individual in his/her capacity as an employee or
applicant for employment. The agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that
he/she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age, or disability. 29 C.F.R. ��
1614.103 and .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. 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).
Upon review of the complaints, we find that complainant was clearly
alleging harassment and a hostile work environment. Specifically,
complainant identified several incidents occurring from December 1997
through April 1998, when he was subjected to harassment, derogatory
remarks, and a hostile work environment. Complainant also indicated that
these incidents involved his supervisor, acting manager, and manager.
Under the circumstances, considering all of the alleged harassing
incidents and remarks, and considering them together in the light most
favorable to complainant, we find that the alleged incidents of the
complaints are sufficient to state a claim. Accordingly, the agency's
final decisions are hereby REVERSED, and the complaints are REMANDED
for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to consolidate the remanded complaints, Agency
Nos. 4K-210-0098-98 and 4K-210-0059-98, for joint processing in accordance
with 29 C.F.R. � 1614.606 and 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 complaints and consolidated them for further processing
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 matters are 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 notice to complainant acknowledging receipt of
the remanded complaints and the consolidation of his complaints at issue,
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 (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:
January 24, 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 Equal Employment Assistant1 On 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. Volume 64 Fed. Reg. 37, 644,
37, 661(1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.606) provides that the Commission may, in its discretion consolidate
two or more complaints filed by the same complainant. Accordingly,
the Commission exercises its discretion to consolidate the cases herein.
2We note that the agency was unable to supply a copy of a certified
mail return receipt or any other material capable of establishing the
date complainant's attorney received the agency's final decisions.
Accordingly, since the agency has failed to fulfill its obligation to
transmit its final decision by a method enabling the agency to show the
date of receipt, the Commission presumes that complainant's appeals were
filed within thirty (30) days of receipt of the agency's final decisions.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.402).