01A02813
07-27-2000
Michael A. Iovino, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael A. Iovino v. United States Postal Service
01A02813
July 27, 2000
.
Michael A. Iovino,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02813
Agency No. 4E-800�0155-99
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed for failure to state a claim pursuant to 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.107(a)(1));<1> as well as for
untimely EEO Counselor contact. See 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)).
We find the agency's dismissal of some of complainant's sixteen identified
claims<2> for failure to state a claim, and others as untimely, improperly
fragmented his complaint. See Howard-Grayson v. U.S. Postal Service,
EEOC Request No. 05990160 (December 3, 1999). See also the Commission's
revised Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110)
(November 9, 1999), Ch. 5, � III (Agencies Must Avoid Fragmenting EEO
Complaints).
The Commission determines that complainant has set forth a cognizable
claim of a hostile work environment due to harassment by agency officials
(his manager and supervisor, whom the agency appears to have described
as a �co-worker�), who purportedly verbally abused him and subjected
him to unwelcome physical contact<3> for a prohibited reason<4> between
January 30, 1998, and January 4, 1999.
The Commission finds that the agency improperly treated complainant's
complaint in piecemeal fashion. See Drake v. Department of the Air Force,
EEOC Request No. 05970689 (March 29, 1999); Tilden v. Department of the
Army, EEOC Appeal No. 01976352 (July 2, 1998); Meaney v. Department of the
Treasury, EEOC Request No. 05940169 (November 3, 1994). Accord Ferguson
v. Department of Justice, EEOC Request No. 05970792 (March 30, 1992). And
see Fitzhugh v. Department of the Air Force, EEOC Request No. 05980558
(November 4, 1999)(harassment) ; Hoffmann v. Department of the Navy,
EEOC Request No. 05970962 (October 28, 1999)(harassment, hostile work
environment, and discrimination in training and work assignments).
The above Commission precedent, however, does not per se prevent the
dismissal of issues on grounds of timeliness or failure to state a claim
where such dismissals are warranted. See Fitzhugh v. Department of the
Air Force, supra (failure to state a claim); Hoffmann v. Department of
the Navy, supra (untimely EEO Counselor contact). The Commission will
require, though, agencies to investigate, as background evidence, alleged
incidents to the extent that they are probative of the overall claim.
See Hoffman v. Department of the Navy, supra.
With regard to the question of whether a claim is cognizable under the
statutes enforced by the Commission (in this case, the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq.), it must be demonstrated,
as a general proposition, that the incidents complained of are either
so severe or so pervasive as to alter the conditions of complainant's
employment. See Riden v. Department of the Treasury, EEOC Request
No. 05970314 (October 2, 1998). See also Fitzhugh v. Department of
the Air Force, supra (harm not alleged concerning a term, condition or
privilege of employment) (citing Diaz v. Department of the Air Force,
EEOC Request No. 05931049) (April 21, 1994).That a complainant, as in
the present case, appears to raise a claim for compensatory damages,<5>
will not make viable a claim that is otherwise not cognizable. See
Brown v. Social Security Administration, EEOC Request No. 05980875
(November 4, 1999) (citing Girard v. Department of the Treasury, EEOC
Request No. 05940379 (September 9, 1994)).
In the present case, we find the sixteen incidents identified by the
agency to be merely examples of this alleged harassment. We also
infer that complainant is claiming that his actions were subjected to
heightened scrutiny by agency officials for a prohibited reason. See Blaha
v. U.S. Postal Service, EEOC Request No. 05910728 (October 25, 1991).
Thus, we also find, in this regard, that complainant timely contacted
an EEO Counselor on February 9, 1999, inasmuch as we find his complaint
sets forth a continuing violation. See Howard-Grayson v. U.S. Postal
Service, supra.
Accordingly, in the present case, the agency's final decision dismissing
complainant's complaint for failure to state a claim and untimely
EEO Counselor contact is REVERSED. The parties are advised that the
Commission's decision is not a decision on the merits of complainant's
complaint. The complaint is hereby REMANDED for further processing in
accordance with the Order below.
ORDER (E0400)
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 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 (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).
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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
July 27, 2000
__________________
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 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.
2Complainant did not contest the agency's framing of the issues in his
complaint on appeal. Indeed, we note, in this regard, that neither party
raised new contentions on appeal. Therefore, although complainant set
forth additional claims during EEO counseling, and an additional basis of
alleged discrimination, he did not include them in his formal complaint.
Thus, we need not address them now.
3Our comments should not be construed to suggest that the alleged physical
contact was of a sexual nature.
4The agency's final decision identified complainant's basis of
discrimination as unspecified perceived disability. On remand, during
the investigative stage of the EEO process, complainant shall clarify
the nature of his alleged perceived disability.
5On remand, complainant shall also clarify whether his request for
a �$300,000 penalty,� as set forth in his complaint, is, in fact,
a request for compensatory damages.