Mohinder Dhillon, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 22, 2000
01995824 (E.E.O.C. Aug. 22, 2000)

01995824

08-22-2000

Mohinder Dhillon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mohinder Dhillon v. United States Postal Service

01995824

August 22, 2000

.

Mohinder Dhillon,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01995824

Agency No. 4-G-770-0257-99

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dismissing her complaint of unlawful employment discrimination

brought under Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination

in Employment Act (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).

After unsuccessful EEO counseling, complainant filed a formal complaint

on April 9, 1999, alleging her supervisor had discriminated against

her based on her race (Asian), color (brown), national origin (India),

and age (over 40) by:

1) Instructing her and not other letter carriers on February 12, 1999,

to pull down her route before pulling and checking DPS;

2) Providing contradictory instructions on whether to case letter mail

or flats first;

3) PM casing her assignment and not those of other carriers who had

curtailed many more feet of mail.

The agency dismissed the complaint for failure to state a claim, finding

complainant was not aggrieved as to the alleged incidents.

The regulation set forth at 64 Fed. Reg. 37644, 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 to 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). Where a complainant 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 is sufficiently severe or pervasive to alter the

conditions of complainant's employment. See Harris v. Forklift Systems,

Inc., 510 U.S. 17 (1993).

The agency's finding that complaint had not �presented evidence of any

concrete harm as a result of the incident� was improper. When confronted

with claims like those in the present case, the agency cannot ignore the

pattern aspect of the allegations and define the issue in a piecemeal

manner, as it appears to have done here. See Ferguson v. Department

of Justice, EEOC Request No. 05970792 (March 30, 1999) and Smith

v. Department of Transportation, EEOC Request No. 05980268 (May 26, 1999).

Even though three enumerated claims may not independently state a claim

does not relieve the agency of its obligation to view those incidents

all together as a claim of harassment. Here, the claims involve the same

supervisor, and appear to have all occurred within the same time frame.

Therefore, in considering the record as a whole, we find the complainant

has stated a claim of harassment from a hostile work environment.

See Cobb v. Treasury, EEOC Request No. 05970077 (March 13, 1997).

Accordingly, we REVERSE the agency's determination regarding the instant

complaint and REMAND the case to the agency for action consistent 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, Director

Office of Federal Operations

August 22, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

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.