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.