Ricky A. Muzny, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01a02904-01a04172 (E.E.O.C. Nov. 17, 2000)

01a02904-01a04172

11-17-2000

Ricky A. Muzny, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ricky A. Muzny v. United States Postal Service

01A02904, 01A04172, 01A04173

11-17-00

.

Ricky A. Muzny,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A02904,

01A04172,

01A04173

Agency No. 4G-730-0034-00,

4G-730-0051-00,

4G-730-0061-00

DECISION

INTRODUCTION

Ricky A. Muzny (the complainant) timely filed appeals with the Equal

Employment Opportunity Commission (the Commission) from final agency

decisions (FADs) 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> The Commission hereby accepts

the appeals in accordance with 29 C.F.R. � 1614.405.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed complainant's

claims for failure to state a claim.

BACKGROUND

Factual History: Complaints A, B and C

Complainant was employed by the agency as a Carrier Technician, Q-06,

at the agency's Westside Station facility in Oklahoma City, Oklahoma.

In April 1999, he sought EEO counseling, regarding a denial of overtime

request, and subsequently he and the agency signed a settlement agreement

(SA) on May 20, 1999. The SA specified that complainant �will not be

questioned on his 3996 [a form for a letter carrier to request auxiliary

help/overtime] when he puts down that he is ill except when medical

conditions may impair work safety.� Complainant has a chronic health

condition, and because of the medication he is taking he periodically

experiences �fatigue, nausea, and vomiting,� according to a letter

from his treating physician. That letter also specifies that when

he experiences these side effects, his �work schedule may need to be

adjusted.� On November 6, 1999, complainant sought EEO counseling

regarding a violation of the SA and another claim. The allegation of

breach of the SA was handled in agency number 4G-730-0114-99, subject of

EEOC Appeal No. 01A02488. Complainant claimed in subsequent complaints

that the agency was subjecting him to harassment based on a hostile work

environment, and he detailed the following incidents as illustrative of

that discrimination:

1) on November 6, 1999, the carrier supervisor (MO-1) breached his SA

by questioning his need for overtime (EEOC Appeal No. 01A02488);

2) on November 15, 1999, the station manager (MO-2) stated on the work

room floor �that it makes him sick to talk to [complainant];�

3) on December 8, 1999, MO-1 stated to complainant that he �has been

waiting to nail [complainant];�

4) on December 15, 1999, MO-1 incorrectly added 8 hours to complainant's

total on the Overtime Desired List;

5) on December 15, 1999, an acting supervisor (MO-3) refused to give

complainant his 3996 form back, even though other carriers were given

theirs back on this day;

6) on December 18, 1999, MO-2 asked MO-1 if complainant �was beginning

to crack;�

7) on December 24, 1999, MO-1, MO-2, MO-3 and other agency employees

were talking on the work room floor about trying to have complainant

removed from his job, expressing their frustrations that he hadn't been

removed, and, more specifically, MO-3 was expressing her disappointment

that �downtown� didn't agree with their [the managers'] proposal that

complainant was unable to perform the duties of his job;

8) on December 29, 1999, MO-1 conducted an �investigative interview� with

complainant regarding the delivery of his route when he �didn't carry

the rest of the walking splits when he broke down� even though there

were no walking splits to carry on the remaining portion of his route;

complainant claimed being subjected to this sort of interview was not

normal procedure when other carriers had similar difficulties on their

routes; and

9) on December 30, 1999, complainant claimed to have heard MO-1 state

on the phone to someone, �there is going to be a shooting around here.�

Procedural History: Complaint A

Complainant initiated EEO Counseling on November 15, 1999. He filed

formal complaint number 4G-730-0034-00, EEOC Appeal No. 01A02904,

on January 4, 2000, claiming discrimination and harassment on the

basis of physical disability and encompassing Issues 1 through 3.

Issue 1 became the subject of agency number 4G-730-0114-99, EEOC Appeal

No. 01A02488. The agency issued FAD-1 on Issues 2 and 3 on February 9,

2000, dismissing both claims for failure to state a claim in that the

complainant had not shown that he was aggrieved.

Complaint B

Complainant initiated EEO Counseling on December 26, 1999. He filed

formal complaint number 4G-730-0051-00, EEOC Appeal No. 01A04172,

on March 3, 2000, claiming discrimination and harassment on the bases

of sex (male), physical disability, and reprisal (prior EEO activity),

and encompassing Issues 4 through 7 and 9. The agency issued FAD-2 on

Issues 4 through 7 on April 25, 2000, dismissing the claims for failure to

state a claim in that the complainant had not shown that he was aggrieved.

It did not address Issue 9.

Complaint C

Complainant initiated EEO Counseling on January 1, 2000. He filed

formal complaint number 4G-730-0061-00, EEOC Appeal No. 01A04173,

on April 10, 2000, claiming discrimination on the basis of reprisal

(prior EEO activity) and encompassing Issue 8. The agency issued FAD-3

on Issue 8 on May 9, 2000, dismissing the claim for failure to state a

claim in that the complainant had not shown that he was aggrieved.

ANALYSIS AND FINDINGS

Initially, we note that we are consolidating complainant's appeals under

the authority granted the Commission in EEOC Regulation 29 C.F.R. �

1614.606.

On review of the records of each appeal, we find that the agency

improperly analyzed each incident by itself to determine whether

complainant stated a claim in his complaints. The Commission has

previously held that when confronted with claims involving multiple

allegations, an agency should not ignore the "pattern aspect" of a

complainant's allegations and define the issues in a piecemeal manner

where an underlying theme unites the matters complained of. Meaney

v. Department of the Treasury, EEOC Request No. 05940169 (November 3,

1994); Ferguson v. Department of Justice, EEOC Request No. 05970792

(March 30, 1999); Drake v. Department of the Air Force, EEOC Request

No. 05970689 (March 29, 1999). We find that complainant's complaints,

when taken together, allege that he was subjected to a pattern of

harassment consisting of a hostile work environment, and provide incidents

to illustrate his work conditions, based on his physical disability, his

sex and retaliation. In determining whether a harassment complaint states

a claim in cases where a complainant had not alleged disparate treatment

regarding a specific term, condition, or privilege of employment, the

Commission has repeatedly examined whether a complainant's harassment

claims, when considered together and assumed to be true, were sufficient

to state a hostile or abusive work environment claim. See Estate of

Routson v. National Aeronautics and Space Administration, EEOC Request

No. 05970388 (February 26, 1999).

In determining whether an objectively hostile or abusive work environment

existed, the trier of fact should consider whether a reasonable

person in the complainant's circumstances would have found the alleged

behavior to be hostile or abusive. Even if harassing conduct produces

no tangible effects, such as psychological injury, a complainant may

assert a Title VII cause of action if the discriminatory conduct was

so severe or pervasive that it created a work environment abusive to

employees because of their race, gender, religion, or national origin.

Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,

1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))

req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,

the trier of fact must consider all of the circumstances, including the

following: the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee's

work performance. Harris, 510 U.S. at 23.

Complainant asserts that MO-1, MO-2 and MO-3 engaged in a pattern of

behavior toward complainant that was designed to intimidate him and

subject him to a heightened level of supervision, creating a hostile and

offensive work environment. In fact, complainant has been on extended

sick leave on his doctor's orders due to the stress caused by his work

environment. The Commission finds, assuming complainant's contentions

are true, that he states an actionable claim of harassment on the

bases of physical disability, sex and reprisal, and that complainant's

complaints were improperly dismissed pursuant to EEOC Regulation 29

C.F.R. � 1614.107(a)(1).

On remand, we find that the complaints should be consolidated for

investigation and processing in that they may form a pattern of

incidents that are evidence of a hostile work environment based on

complainant's physical disability, sex and reprisal. Additionally, the

Commission's finding that MO-1 breached complainant's SA, the subject of

EEOC Appeal No. 01A02488, should be investigated as background evidence

to the claims.

CONCLUSION

Accordingly, the agency's final decisions dismissing complainant's

complaints for failure to state a claim are REVERSED. The complaints

are hereby REMANDED for further processing in accordance with the Order

below.

ORDER

The agency is ORDERED to process the consolidated remanded claims in

accordance with 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 (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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

(R0900)

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

__11-17-00________________

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

______________________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.