Martha A. Tartal, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.

Equal Employment Opportunity CommissionJul 17, 2000
01a02627 (E.E.O.C. Jul. 17, 2000)

01a02627

07-17-2000

Martha A. Tartal, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.


Martha A. Tartal, )

Complainant, )

)

v. ) Appeal Nos. 01996739

) 01A02627

) Agency Nos. 1-K-211-0144-99

William J. Henderson, ) 4-K-210-0013-00

Postmaster General, )

United States Postal Service, )

(Allegheny/Mid Atlantic Region), )

Agency. )

____________________________________)

DECISION

On December 22, 1998, complainant contacted an EEO counselor concerning

incidents involving her supervisor. Complainant filed a formal complaint,

dated April 29, 1999, alleging unlawful employment discrimination and

harassment on the bases of sex (female) and retaliation for prior EEO

activity in violation of Title VII of the Civil Rights Act of 1964

(Title VII), as amended, 42 U.S.C. � 2000e et seq. (Complaint 1).<1>

On May 28, 1999, the agency accepted her complaint for investigation.

The agency framed the scope of the investigation as follows: On November

8, 1998 to January 26, 1999, upon complainant's return from knee surgery,

(1) her supervisor required her to perform the same amount of work

in four hours as he required male co-workers to perform within eight

hours, although she was on limited duty of four hours per day; (2)

she was repeatedly required to provide updated medical records; and (3)

her medical restrictions were violated.<2>

Meanwhile, on April 29, 1999, complainant again contacted an EEO counselor

and subsequently filed a formal complaint, dated July 7, 1999, alleging

discrimination on the bases of sex (female) and retaliation. In her

complaint, she alleged that, on April 18, 1999, the same supervisor

spoke to her in a hostile and intimidating tone while striking a metal

rod against his hand and blocking two of three exits (Complaint 2).

The agency dismissed the complaint, pursuant to 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified at 29 C.F.R. � 1614.107(a)(1)), for failure

to state a claim. Specifically, the agency stated that complainant

had failed to establish that she had suffered any personal loss or

harm as a result of the alleged agency action. On September 3, 1999,

complainant filed a timely appeal (EEOC Appeal No. 01996739). The appeal

is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405).

While awaiting this Commission's decision on EEOC Appeal No. 01996739,

complainant contacted an EEO counselor once again on September 29, 1999.

She filed a formal complaint, dated November 17, 1999, alleging that

she was subjected to discrimination on the bases of sex (female)

and retaliation. In her complaint, she alleged that, on September

26, 1999, she learned from her supervisor that another supervisor,

the same person against whom she had filed her previous complaints,

had printed a report on her clock rings for the previous day and had

given the report to her supervisor with her reporting time (1 unit late)

highlighted (Complaint 3). In a final agency decision dated January 12,

2000, the agency dismissed the complaint for failure to state a claim.

Specifically, the agency found that the complainant had failed to

allege any personal loss or harm from the supervisor's alleged action.

Complainant filed a timely appeal on February 14, 2000 (EEOC Appeal

No. 01A02627). The Commission accepts the appeal for review pursuant

to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �

1614.405).

On appeal, complainant argues, through her attorney, that all of her

complaints concern the creation of a hostile work environment and a

continuing pattern of sex-based harassment beginning in April 1996 at

the hands of the same supervisor.<3> She contends that when considered

together with her other harassment claims, the claims appealed in 01996739

and 01A02627 allege sufficient harm to state a claim.

ANALYSIS AND FINDINGS

EEOC Regulations allow the Commission to consolidate two or more

complaints filed by the same complainant. See 64 Fed. Reg. 37,644, 37,661

(1999) (to be codified and hereinafter cited as 29 C.F.R. � 1614.606).

Consolidation is encouraged to avoid the fragmentation of claims, and to

use Commission resources more efficiently. See generally Equal Employment

Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),

ch.5, sec. III (November 9, 1999). Therefore, the Commission consolidates

Appeal Nos. 01995739 and 01A02627 in the present decision.

The Commission requires agencies to address the "pattern aspect" of

harassment claims to avoid a piecemeal dismissal of matters united

by an analogous theme. See Meaney v. Department of the Treasury,

EEOC Request No. 05940169 (November 3, 1994); see also EEO MD-110, 5-5.

When analyzing harassment claims to determine whether they state a claim,

the Commission requires that all incidents be considered together, and

in a light most favorable to complainant. See Cobb v. Department of

the Treasury, EEOC Request No. 05970077 (March 13, 1997). This analysis

may include claims from different formal complaints. See id. (analyzing

claims from several different complaints together to determine whether

an actionable claim of harassment exists).

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.

In the present case, complainant clearly alleges a pattern of harassment

occurring from November 1998 through September 1999. All of the matters

alleged concern how complainant was treated by one supervisor. The

dismissals appealed in 01996739 and 01A02627 improperly fragmented

complainant's claim of harassment. When viewed in the context of

Complaint 1, accepted by the agency for investigation, the matters raised

in 01996739 and 01A02627 state a claim and the agency's dismissal of

those claims for failure to state a claim was improper.

CONCLUSION

Accordingly, the dismissals appealed in 01996739 and 01A02627 are

REVERSED, and the incidents, as defined above, are REMANDED to be

consolidated and investigated as an ongoing claim of harassment.

ORDER (E0400)

The agency is ORDERED to consolidate the remanded claims with

complainant's other pending complaint, Agency No. 1-K-211-0073-99.

Thereafter, the agency shall process the consolidated complaint 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

acknowledge to the complainant that it has received and consolidated

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 (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

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 17, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.

2Although complainant did not explicitly allege discrimination on

the basis of disability, it is apparent that she may have a claim on

the basis of disability (physical) for the agency's alleged failure to

provide reasonable accommodation under Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The Commission notes that the complainant may amend her complaint at any

time to add or delete bases without changing the identity of the claim.

See Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970);

Dragos v. United States Postal Service, EEOC Request No. 05940563

(January 19, 1995).

3 On February 25, 1999, complainant filed a civil action claiming that

her supervisor subjected her to on-going sex-based harassment from April

1996 through December 1996 (Case No. AMD-99-CV-539). While Commission

regulations mandate the dismissal of a complaint that is pending in

United States District Court, the record establishes that the incidents

described in Complaints 1-3 are not the subject of the civil action.