Larry W. Cole, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01991621_2 (E.E.O.C. Jan. 24, 2000)

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).