01a00487
07-12-2000
Michael Yee, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael Yee, )
Complainant, )
)
v. ) Appeal No. 01A00487
) Agency No. HO020599
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On September 23, 1999, complainant filed a timely appeal with this
Commission from an agency decision dated August 23, 1999.<1> Complainant
alleged that the agency discriminated against him from January 1997
until August 1998 on the bases of race (Asian-American), national origin
(Asian), sex (male), and in reprisal for opposition to prohibited EEO
activity. The agency defined the claims as follows:
on August 19, 1998, complainant's supervisor had an �official discussion�
with him and gave him 30 days to improve his performance;
in August 1998, the agency did not conduct an investigation into the
�official discussion� after complainant requested an investigation on
two occasions;
in September 1998, complainant's supervisor excluded him from an
essential meeting;
in June 1998, complainant's supervisor accused him of purposely
scheduling himself out of the office when he was left in charge;
in June 1998, complainant's supervisor accused him of not notifying
another employee who was taking her place that week;
in June 1998, complainant learned that his supervisor questioned whether
his travel was necessary to complete his EEO assignment;
in June 1998, his supervisor accused him of being responsible for the
alleged dissension between two female agency employees;
On May 1, 1998, complainant's supervisor allegedly informed the agency
advocate that complainant had been remiss in responding to a Request
for Reconsideration in a timely manner and that the agency was required
to implement the decision of the Office of Federal Operations;
in April 1998, complainant's supervisor accused him of removing a
picture of his daughter from her bookshelf;
in February 1998, complainant became aware that two other agency
employees were selected for a detail assignment that was not posted;
in February and March 1998, complainant's supervisor sent three memos
to the employees requesting the employee's reporting times, indicating
that she may rotate everyone's reporting times to accommodate a contract
employee's sitter problems, and stating that whoever replaces her during
her absence must assume her reporting hours;
in February 1998, complainant was not utilized during his supervisor's
absence; however, a white male and a black female, who replaced her,
did not assume her reporting hours;
on December 15, 1997, complainant's supervisor electronically mailed
him a note of her �concerns� about his performance;
in November 1997, complainant's supervisor denied him information and
training required for his job;
in November 1997, complainant's supervisor chose not to talk or discuss
matters with him;
in November 13, 1997, complainant's supervisor accused him of being
at fault when he authorized the use of a vehicle while a subordinate
employee was in training;
in November 1997, complainant's supervisor accused him of failing to
investigate the misuse of a government vehicle of another employee;
on November 5, 1997, complainant's supervisor left a note on his desk
marked �Overdue�, but she did not leave a note for any other employee;
in November 1997, complainant's supervisor accused complainant of
cheating on a test and stated that complainant should act like an adult;
and
in November 1997, complainant's supervisor isolated him and kept him
from accepting social invitations from his peers.
Pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(2) and � 1614.107(a)(1)),
the agency dismissed claims 4-20 for untimely EEO counselor contact
and dismissed claims 1, 2, 4-9, and 11-20 for failure to state a claim.
The agency failed to address claim 3.
Initially, the Commission finds that the agency did not properly
identify all of the claims in the complaint. The Commission finds that
the investigative file and formal complaint reveal that complainant is
alleging that he was harassed by the incidents in claims 1-20 above and
the following actions/incidents:
in September/ October 1997, complainant was accused of conducting
business without his supervisor's approval;
in October 1997, complainant was not allowed to work at home after
an ankle injury whereas other employees were allowed to work at home,
to save sick leave, and to be paid for work that was not performed;
prior to October 5, 1998, complainant was detailed to the San Jose
District and was required to use sick leave while the assignment was
being confirmed although he was prepared to return to duty;
on October 22, 1998, complainant's personal belongings were removed from
his office, and the agency said that he would be detailed indefinitely;
and
on unspecified dates, complainant's supervisor intimidated potential
witnesses by approaching them regarding the complaint.
Failure To Comply With Applicable Time Limits
According to the regulations, a complainant must initiate contact with
an EEO counselor within 45 days of an alleged discriminatory event. 29
C.F.R. � 1614.105(a)(1). An agency shall dismiss a claim if the
complainant does not comply with the applicable time limits. 29 C.F.R. �
1614.107(a)(2). Yet, the Commission has held that the time requirements
for initiating EEO counseling could be waived as to certain claims
within a complaint when the complainant alleged a continuing violation.
In a continuing violation, or a series of related discriminatory acts,
the complainant must show that at least one of the alleged discriminatory
events fell within the 45-day time period for contacting an EEO Counselor.
See Reid v. Department of Commerce, EEOC Request No. 05970705 (April 22,
1999); McGivern v. United States Postal Service, EEOC Request No. 05901150
(December 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a
common nexus or theme. See Vissing v. Nuclear Regulatory Commission, EEOC
Request No. 05890308 (June 13, 1989); Verkennes v. Department of Defense,
EEOC Request No. 05900700 (September 21, 1990); Maldonado v. Department
of the Interior, EEOC Request No. 05900937 (October 31, 1990). If such a
nexus exists, complainant will have established a continuing violation,
and the agency will be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by complainant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to this determination are whether the acts were recurring
or were more in the nature of isolated employment decisions; whether
an untimely discrete act had the degree of permanence which should
have triggered an employee's awareness and duty to assert his or
her rights; and whether the same agency officials were involved.
Woljan v. Environmental Protection Agency, EEOC Request No. 05950361
(October 5, 1995). Further, it is important, in determining whether
a claim for a continuing violation is stated, to consider whether an
complainant had prior knowledge or suspicion of discrimination and
the effect of this knowledge. Jackson v. Department of the Air Force,
EEOC Request No. 05950780 (June 27, 1997).
In this case, complainant alleged harassment from January 1997 through
August 1998. According to the record, complainant contacted an EEO
Counselor on September 9, 1998. One of the alleged discriminatory events
occurred August 19, 1998, within the 45-day time period. The incidents
were related by a common nexus since they involved the same officials,
were recurring, and were in close temporal proximity to each other.
Therefore, the Commission finds that the complainant established a
continuing violation. Accordingly, the agency's decision dismissing
claims 4-20 is REVERSED and REMANDED.
Failure to State a Claim
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 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. 29 C.F.R. �� 1614.103, .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 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.
In his complaint, complainant alleged a series of events which allegedly
occurred from January 1997 through August 1998. Specifically, complainant
alleged that he was subjected to harassment which created a hostile work
environment. Instead of treating these events as incidents of the claim
of harassment, however, the agency looked at them individually. Thus,
we find that the agency acted improperly by treating matters raised in
complainant's complaint in a piecemeal manner. See Meaney v. Department
of the Treasury, EEOC Request No. 05940169 (November 3, 1994) (an agency
should not ignore the "pattern aspect" of a complainant's claims and
define the issues in a piecemeal manner where an analogous theme unites
the matter). Consequently, when complainant's claims are viewed in the
context of complainant's complaint of harassment, they state a claim and
the agency's dismissal of those claims for failure to state a claim was
improper.
When claims 1, 2, 4-9, and 11-20 are viewed together in the light most
favorable to complainant, the Commission finds that they are sufficiently
severe or pervasive to alter the conditions of complainant's employment.
Accordingly, these claims state a claim of harassment. The agency's
decision dismissing these claims on the grounds of failure to state a
claim is REVERSED and REMANDED.
Failure to Address
The agency failed to address claims 3 and 21-25 and the Commission deems
the agency's action to be tantamount to a dismissal of those matters
without sufficient support. Accordingly, claims 3 and 21-25 are REMANDED
to the agency 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:
July 12, 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.