01983952_01981858
03-23-2000
Marilou B. Cobero, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Marilou B. Cobero, )
Complainant, )
)
v. ) Appeal Nos. 01993952, 01981858
) Agency Nos. 1K-221-0036-98, 1K-221-0170-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed two appeals with this Commission from final decisions of
the agency concerning her complaints of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq.<1> The final agency decision with regard to
Agency No. 1K-221-0170-97 was issued on December 5, 1997. The appeal
was postmarked January 5, 1998. The final agency decision with
regard to Agency No. 1K-221-0036-98 was issued on March 6, 1998.
The appeal was postmarked April 21, 1998. Accordingly, the appeals
are timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
and hereinafter cited as 29 C.F.R. �1614.402(a)), and are accepted in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. �1614.405).<2> These appeals have been consolidated for purposes
of review.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
all but one claim of the respective complaints on the grounds of failure
to state a claim.
BACKGROUND
Agency No. 1K-221-0170-97
On October 1, 1997, complainant filed a formal EEO complaint wherein
she claimed that she was discriminated against on the bases of her color
(not specified), race (Asian), national origin (not specified), and in
retaliation for her previous EEO activity when:
1. Management failed to do their job relative to Administrative Procedure
#91-7.
2. Management spread rumors that she faked her injury.
3. She was harassed to come back to work.
4. Management tried to set her up for improper posture.
5. Management denied her a shop steward at the reenactment of an
accident.
6. Management told �a lady� what to write on her statement.
7. An Injury Compensation Specialist failed to pay her continuation
of pay on time and withheld her paychecks for pay periods 17 and 19,
and harassed her over the telephone.
8. She was physically assaulted by a temporary clerk.
9. She was threatened by management and management failed to provide
her with a safe working environment.
10. Management is intentionally inflicting emotional stress on her.
The agency accepted claim (7) of the complaint for investigation.
Claims 1-6 and 8-10 were dismissed the complaint on the grounds of
failure to state a claim. The agency determined that complainant did
not suffer a personal loss or harm with respect to a term, condition,
or privilege of her employment. Further, the agency noted that the
employee who assaulted the complainant was terminated.
On appeal, complainant claims that she was subjected to a hostile work
environment and a conspiracy of harassment by management officials.
On August 20, 1998, the parties entered into a settlement agreement
with regard to claim (7) of the complaint. The agency agreed to treat
complainant with dignity and respect, and that no retaliation would be
taken against complainant for filing the complaint.
Agency No. 1K-221-0036-98
On February 9, 1998, complainant filed a formal EEO complaint wherein she
claimed that she had been discriminated against on the bases of her race,
color, national origin, and in reprisal for her previous activity when:
1. On November 18, 1997, an EEO Counselor provided false information
when she reported that the temporary clerk who assaulted complainant
was already terminated.
2. An Injury Compensation Specialist sent two agency supervisors to visit
complainant at her home to harass and question her about her injury.
In its final decision, the agency dismissed the complaint on the grounds
of failure to state a claim. The agency determined that complainant
failed to provide any evidence that would suggest that she suffered a
personal loss or harm with respect to a term, condition, or privilege of
her employment as a result of the alleged actions. The agency stated
that a home visitation team was developed by the District Manager.
According to the agency, the team consists of a pool of supervisors who
make visits of care to employees who have been injured.
On appeal, complainant maintains that the individual who assaulted her is
still employed by the agency. Complainant states that this individual
was convicted of assaulting her in the Circuit Court of Fairfax County,
Virginia. According to complainant, she continues to suffer from fear
of an unsafe work environment, emotional stress, physical injury, and
she has not returned to work since she was assaulted on July 31, 1997.
Complainant maintains that the agency has engaged in a pervasive pattern
of discriminatory actions against her.
ANALYSIS AND FINDINGS
Volume 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, or portion thereof, 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. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29
C.F.R. �1614.103); �1614.106(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 22, 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).
In the present complaints, complainant claimed that she was subjected to
a hostile work environment and discriminatory harassment when agency
management failed to do its job relative to Administrative Procedure
#91-7; management spread rumors that complainant faked her injury; she
was harassed to come back to work; management tried to set her up for
improper posture; management denied her a shop steward at the reenactment
of an accident; management told �a lady� what to write on her statement;
she was physically assaulted by a temporary clerk; she was threatened
by management and management failed to provide her with a safe working
environment; management has been intentionally inflicting emotional stress
on her; an EEO Counselor provided false information when she reported
that the temporary clerk that assaulted complainant had been terminated;
and the Injury Compensation Specialist sent two agency supervisors to
visit her at her home, and to harass and question her about her injury.
Viewing these claims in the light most favorable to complainant, we find
that complainant stated a cognizable claim under the EEOC Regulations.
See Cervantes v. United States Postal Service, EEOC Request No. 05930303
(November 12, 1993). The alleged actions were of sufficient severity and
pervasiveness to constitute harassment and a hostile work environment.
Accordingly, the agency's decisions to dismiss claims 1-6 and 8-10 of
Agency No. 1K-221-0170-97 and the complaint in Agency No. 1K-221-0036-98
for failure to state a claim were improper and are hereby REVERSED.
Claims 1-6 and 8-10 of Agency No. 1K-221-0170-97 and the complaint in
Agency No. 1K-221-0036-98 are hereby REMANDED for further processing in
accordance with the ORDER below.
ORDER
The agency is ORDERED to process the remanded claims in accordance with
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 consolidate both
complaints for a single investigation pursuant to 64 Fed. Reg. 37,644,
37,661 (1999) (to be codified as 29 C.F.R. � 1614.606). The agency
shall acknowledge to the complainant that it has received the remanded
and consolidated 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, including
the notice of consolidation, 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 (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).
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:
March 23, 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 Assistant
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 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.
2The record does not establish when each final decision was received by
complainant. Absent evidence to the contrary, we find that the instant
appeals were timely filed.