01992996
04-18-2000
Mark Elmore, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mark Elmore, )
Complainant, )
)
v. ) Appeal Nos. 01992996
) 01992997
William J. Henderson, ) 01992998
Postmaster General, ) 01993002
United States Postal Service, ) 01993321
Agency. ) 01993322
________________________)
DECISION
The complainant filed timely appeals with this Commission from six
separate final decisions of the agency (FAD), concerning his 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>
In his complaints, the complainant alleged that he was continuously
subjected to discrimination on the basis of reprisal.
The agency dismissed all six of the complainant's complaints pursuant
to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1)), for failure to state a claim
because the complainant failed to show how he was harmed by any of the
agency's actions. We note here that all of these actions were taken by
the same supervisor and management official.
Complaint No. 1 (Agency Case No. 4-J-460-0184-97) (Appeal No. 01992996)
On August 16, 1998, the complainant filed a complaint alleging that he
had been discriminated against in retaliation for his prior EEO activity
when:
(1a) on July 19, 1997, the supervisor followed him out to the street
to observe his route;
(1b) on July 21, 1997, the supervisor required that he be retrained on
mail returned from the street, and
(1c) on July 22, 1997, he was denied a copy of the observation form.
By FAD dated February 2, 1999, the agency dismissed the complainant's
complaint in its entirety, pursuant to 29 C.F.R. � 1614.107(a)(1), on
the grounds that he was not �aggrieved� because he had not demonstrated
that he had suffered any loss or harm as a result of the agency's alleged
actions.
Complaint No. 2 (Agency Case No. 4-J-460-0130-97) (Appeal No. 01992997)
On August 25, 1998, the complainant filed another complaint alleging
that he had been discriminated against in retaliation for his prior EEO
activity when:
(2a) on April 15, 1997, his supervisor falsified his mail count;
(2b) on April 16, 1997, his supervisor threw away good mail, and
(2c) on April 17, 1997, his supervisor accused him of taking a sixteen
minute break and followed him for the rest of his route.<2>
By FAD dated February 3, 1999, the agency again dismissed the complaint
in its entirety, pursuant to 29 C.F.R. � 1614.107(a)(1), on the grounds
that he was not �aggrieved� because he had not demonstrated that he had
suffered any loss or harm as a result of the agency's alleged actions.
Complaint No. 3 (Agency Case No. 4-J-460-0173-97) (Appeal No. 01992998)
On August 11, 1998, the complainant filed another complaint alleging
that he had been discriminated against in retaliation for his prior EEO
activity when:
(3a) on July 7, 1997, the supervisor counted his mail but would not
let him verify the count and no one else's mail was counted;
(3b) on July 7, 1997, his supervisor refused his request to go to the
doctor, call injury compensation and did not respond to his request
for overtime;<3>
(3c) on July 8, 1997, he was given an official discussion on the use
of overtime by the management official; and
(3d) his mail was counted again and he was not allowed to contact the
EEO office or a union representative.<4>
By FAD dated February 4, 1999, the agency dismissed the complaint in
its entirety, pursuant to 29 C.F.R. � 1614.107(a)(1), on the grounds
that he was not �aggrieved� because he had not demonstrated that he had
suffered any loss or harm as a result of the agency's alleged actions.
The agency further stated that no notation of the official discussion
existed in the complainant's official personnel folder.
Complaint No. 4 (Agency Case No. 4-J-460-0073-98) (Appeal No. 01993002)
On August 16, 1998, the complainant filed another complaint alleging
that he had been discriminated against in retaliation for his prior EEO
activity when on December 4, 1997: he was not given time to complete his
Combined Federal Campaign duties; he was told to read the board every
day; his mail was miscounted and he was not allowed to verify the count,
and he received a delayed copy of the PS Form 1838.
By FAD dated February 2, 1999, the agency dismissed the complainant's
complaint in its entirety, pursuant to 29 C.F.R. � 1614.107(a)(1), on
the grounds that he was not �aggrieved� because he had not demonstrated
that he had suffered any loss or harm as a result of the agency's alleged
actions.
Complaint No. 5 (Agency Case No. 4-J-460-0153-97) (Appeal No. 01993321)
On August 25, 1998, the complainant filed another complaint alleging
that he had been discriminated against in retaliation for his prior EEO
activity when:
(5a) on April 15, 1997, the supervisor falsified his mail count and he
was not allowed to verify it;
(5b) On April 26, 1997, he was ordered to carry mail differently than
other carriers; and
(5c) the supervisor gave him a direct order to go to the Employee
Assistance Program (EAP) because his outlook was different from hers.<5>
By FAD dated February 10, 1999, the agency dismissed the complainant's
complaint in its entirety, pursuant to 29 C.F.R. � 1614.107(a)(1), on
the grounds that he was not �aggrieved� because he had not demonstrated
that he had suffered any loss or harm as a result of the agency's alleged
actions.
Complaint No. 6 (Agency Case No. 4-J-460-0066-98) (Appeal No. 01993322)
August 18, 1998, the complainant filed another complaint alleging that he
had been discriminated against in retaliation for his prior EEO activity
when:
(6a) on December 8, 1997, the supervisor observed him on the street
and held him to only eight hours; and
(6b) on December 10, 1997, the supervisor told him to stop taking small
parcels from his tub, while the other carriers were allowed to continue
to do so.
By FAD dated February 10, 1999, the agency dismissed the complainant's
complaint in its entirety, pursuant to 29 C.F.R. � 1614.107(a)(1), on
the grounds that he was not �aggrieved� because he had not demonstrated
that he had suffered any loss or harm as a result of the agency's alleged
actions.
ANALYSIS AND FINDINGS
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to 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, 37655-56, (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.103 and 29 C.F.R. � 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 21, 1994).
In all of the complainant's complaints he alleged a pattern of harassment
by his supervisor and manager based on retaliation for previous EEO
activity. The Commission has previously held that an agency should not
ignore the �pattern aspect� of the complainant's claims and define the
issues in a piecemeal manner where an analogous theme unites the matters
complained of. See Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994). In the present case, the evidence
reveals that the complainant's claims concern an �analogous theme� or
agency objective that united the alleged discriminatory acts set forth in
the six complaints, i.e., retaliation for prior EEO activity. By alleging
a pattern of harassment, the complainant has stated a cognizable claim
under the EEOC regulations. See Cervantes v. U.S. Postal Service,
EEOC Request No. 05930303 (November 12, 1993).
Accordingly, the agency's FADs dismissing the complainant's complaints
were improper and are VACATED. The complaints are REMANDED to the agency
for further processing as a claim of continuing harassment in accordance
with this decision and applicable regulations.
ORDER (E1199)
The agency is ORDERED to consolidate and process all of the
claims contained in the remanded complaints in accordance with 64
Fed. Reg. 37,644, 37,656-57 (1999) (to be codified and hereinafter
referred to as 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 an
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 (M1199)
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). 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:
April 18, 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:
_________________________
__________________________
1 On 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.
2 We note that the agency failed to address claim (2c) contained in the
complainant's formal complaint.
3 We note that the agency failed to address claim (3b) contained in
the complainant's formal complaint.
4 We note that the agency failed to address claim (3d) contained in
the complainant's formal complaint.
5 We note that the agency failed to address claim (5c) contained in
the complainant's formal complaint.