Lloyd Pugh, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 11, 2000
01a01457 (E.E.O.C. Jul. 11, 2000)

01a01457

07-11-2000

Lloyd Pugh, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Lloyd Pugh, )

Complainant, )

)

v. ) Appeal No. 01A01457

) Agency No. CC801006698

William J. Henderson, ) Hearing No. 320-99-8068X

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On September 1, 1998, complainant filed a class complaint of

discrimination, alleging violations of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq. Complainant sought to

represent a class of African-Americans and �non-white� �people of color�

including Native Americans harmed by a training program that included

blatantly racially discriminatory statements. Complainant alleged that

the training program created unfounded fears in supervisors, caused

disparate treatment of class members, and resulted in harassment of

class members.

The complaint was forwarded to a Commission class complaint pilot program

for a certification determination. The program recommended that the

complaint be dismissed for failure to state a claim. The recommendation

did not address class certification issues such as numerosity, typicality,

commonality, or adequacy of representation. The agency adopted the

recommendation without change in its final decision, dated October

19, 1999. Complainant timely appealed the agency's decision, and the

Commission accepts the appeal for review. See 64 Fed. Reg. 37,644, 37,

659 (1999) (to be codified at 29 C.F.R. � 1614.405).

The record reveals that the training program, created by a private

contractor, the Center for Aggression Management, included a statement

that African-American and Native-Americans �look you in the eye when

they are ready for a fight.�

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 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).

The Commission addressed an identical issue in McArthur v. United States

Postal Service, EEOC Appeal No. 01990854 (January 18, 2000). In that

case, the same training class, involving the same statement, was found

to create a hostile work environment. The Commission stressed that

although isolated remarks ordinarily do not provide adequate support for

a claim of harassment, the training remarks at issue in this complaint

involved blatant racial stereotyping �so severe in their insensitivity,

and pervasive in their distribution, that they create a hostile work

environment.� McArthur v. United States Postal Service, supra. We agree

with the Commission's prior holding.

We note that this claim, unlike the prior complaint, involved a class

complaint. Since neither the certification recommendation nor the

agency's decision addressed whether the complaint satisfied numerosity,

typicality, commonality, and adequacy of representation requirements,

these matters must be addressed on remand in accordance with 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter cited

as 29 C.F.R. � 1614.204).

CONCLUSION

Accordingly, the agency's dismissal is REVERSED, and the claim is REMANDED

for a certification determination.

ORDER

The agency shall process the remanded class complaint in accordance with

29 C.F.R. � 1614.204. Within fifteen (15) calendar days of the date this

decision becomes final, the agency shall forward the entire complaint

file to an EEOC Administrative Judge to determine whether the complaint

involves adequate numerosity, typicality, commonality, and adequacy

of representation to satisfy the requirements for a class complaint.

The agency must submit a copy of the letter forwarding the file for

certification 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 (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

July 11, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations