0120091583
06-30-2009
Laurence Fedora, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Laurence Fedora,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091583
Agency No. 1E-971-0012-09
DECISION
BACKGROUND
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 29, 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of religion (Catholic) and reprisal for prior
protected EEO activity under Title VII when: (1) on October 2, 2008,
management required him to fulfill three requirements prior to receiving
any leave requests for religious reasons and (2) he was subjected to
harassment.
The agency dismissed claim (1) finding that complainant was
alleging dissatisfaction with the processing of his prior complaint.
In particular, it noted that complainant had filed a prior complaint
which was resolved by settlement agreement. In complainant's formal
complaint, he indicated that management's actions were a breach of the
settlement agreement. As such, the agency indicated that complainant
needed to contact the agency's attorney if he believed the settlement
had been breached. Therefore, the agency dismissed claim (1) pursuant
to 29 C.F.R. � 1614.107(a)(8).
As for claim (2), the agency indicated that complainant alleged that
his supervisor made "inflammatory statements" about complainant.
Specifically, the decision stated that complainant was alleging that
the following events occurred: on October 8, 2008, complainant had to
fulfill three requirements in order to obtain leave; the supervisor stated
that he was "out to get" complainant; and the supervisor stated that
complainant was a "lazy piece of shit." Based on these allegations,
the agency determined that complainant had not shown that he was
aggrieved. Accordingly, the agency dismissed claim (2), pursuant to 29
C.F.R. � 1614.107(a)(1), for failure to state a claim.
CONTENTIONS ON APPEAL
Complainant appealed the agency's dismissal. On appeal, complainant
indicated that he had been subjected to harassment based on his religion
and due to his prior protected activity. He noted that management
applied different requirements on him regarding leave as compared to
his co-workers. Specifically, he was required to get a note from his
church indicating his standing with the church; to get a signed receipt
from his supervisor that he tendered a PS Form 3971; and to provide
the leave request up to two weeks in advance. Complainant indicated
that no other employee was required to submit the same paperwork with
two-weeks advance notice. In addition, complainant stated that this
was part of a pattern or campaign of harassment. He had been issued
letters of warning and suspensions based on false charges. Complainant
argued that his supervisor's actions were part of his plan to "get rid"
of complainant. In addition, he asserted that the supervisor would use
derogatory terms to refer to complainant in front of other employees.
Therefore, complainant asserts that he was harmed by the supervisor's
action and does, in fact, state a claim of harassment.
The agency requests that the Commission uphold its final decision
dismissing the complaint.
ANALYSIS AND FINDINGS
As to claim (1), we find that the agency has not provided the Commission
with a copy of the settlement agreement. Thus, the agency has failed to
substantiate the basis for its final decision. See Marshall v. Department
of the Navy, EEOC Request No. 05910685 (September 6, 1991). Therefore,
we reverse the agency's dismissal of claim (1) pursuant to 29 C.F.R. �
1614.107(a)(8). Further, we note that the Commission has previously
reviewed complainant's claim of breach of the settlement agreement.
In our decision in Fedora v. United States Postal Serv. EEOC Request
No. 0520080455 (May 14, 2008), the Commission indicated that if
complainant believed "he was subjected to discrimination (i.e. denied a
religious accommodation) subsequent to the execution of the settlement
agreement, he should contact an EEO Counselor." Based on complainant's
statement on appeal and the record provided, we find that complainant
is alleging a new claim of denial of religious accommodation. As such,
we find that the agency's dismissal of claim (1) was inappropriate and
remand claim (1) for further processing.
With regard to claim (2), 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. 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).
We note that in reviewing claim (2), the agency failed to treat the
alleged events as incidents comprising a claim of harassment. Instead,
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
not appropriate. As such, we REVERSE the agency's final decision and
REMAND the complaint for further processing as ORDERED 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
June 30, 2009
__________________
Date
2
0120091583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120091583