Lucy Moon, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 28, 2000
01992182 (E.E.O.C. Dec. 28, 2000)

01992182

12-28-2000

Lucy Moon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Lucy Moon v. U.S. Postal Service

01992182

December 28, 2000

.

Lucy Moon,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01992182

Agency No. 4-F-913-0148-98

DECISION

Upon review, the Commission finds that the agency improperly dismissed

the instant complaint on the grounds of failure to state a claim pursuant

to 29 C.F.R. � 1614.107(a)(1).<1>

Complainant contends that the agency has engaged in on-going retaliatory

harassment against her since her involvement in a sexual harassment

complaint. She has filed several EEO complaints concerning this claimed

harassment, including the instant complaint. All of these complaints have

been dismissed for failure to state a claim based on a determination that

complainant was not �aggrieved� by the incidents identified in each of

these complaints. The Commission has previously affirmed the agency's

dismissal in two of these complaints. See Moon v. U.S. Postal Service,

EEOC Appeal No. 01984393 (February 4, 1999); Moon v. U.S. Postal Service,

EEOC Appeal No. 01990317 (April 2, 1999).

On appeal, complainant argues that she has clearly set forth the instant

complaint as a claim of harassment due to a hostile work environment, with

reference to the incidents in her prior complaints. Complainant asserts

that when viewed in the context of all of the incidents identified in all

of her complaints, she has set forth an actionable claim of harassment.

Review of the record confirms complainant's contention that she has filed

prior EEO complaints based on reprisal. Furthermore, in its decision

dismissing the instant complaint, the agency failed to address it as

a harassment claim, instead treating the complaint as consisting of

separate claims based on separate incidents, unrelated to each other

or to the incidents in the prior complaints.

In Harris v. Forklift Systems, Inc., 510 U.S. 17,21 (1993), the Supreme

Court found that harassment is actionable, even absent a claim that

an agency's action harmed complainant in a specific term, condition

or privilege of employment, as long as the complainant can otherwise

demonstrate that the conduct was engaged in with the purpose of creating a

hostile work environment, and also that the conduct is sufficiently severe

or pervasive as 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). Moreover, the Commission takes a very broad view of

reprisal claims. As set forth in the EEOC Compliance Manual, EEOC Order

No. 915.003, "Retaliation," p. 8-15 (May 20, 1998), claimed retaliatory

actions are not restricted to those which affect a term or condition

of employment, and may include any action which is reasonably likely to

deter protected activity.

Here, we find that the agency improperly framed and dismissed the

instant complaint. We find that complainant very specifically states

that the incidents at issue are further evidence of her claim of on-going

retaliatory harassment due to a hostile work environment, and asks that

the instant claim be viewed in the context of her prior complaints.

Based on these statements, as well as complainant's contention on

appeal that the claimed harassment has cost her �details, promotions,

cash awards, and merits increases,� we find that complainant has set

forth an actionable claim of harassment. Furthermore, we note that all

of the incidents identified in the prior complaints must be considered

as background evidence with respect to the instant claim of harassment,

notwithstanding the Commission's previous determinations to affirm the

agency's dismissal of these complaints.

Accordingly, the agency's final decision dismissing complainant's

complaint for failure to state a claim is REVERSED. The complaint is

hereby REMANDED for further processing in accordance with the Order below.

ORDER (E0900)

The agency is ordered to process the remanded harassment claim 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 (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 28, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

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.