0120091331
07-09-2009
Robert E. Riedel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert E. Riedel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091331
Agency No. 1E681000309
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 23, 2008, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Caucasian), sex (male), religion (Christian),
and reprisal for prior protected EEO activity under Title VII when
complainant was subjected to harassment. In support of his claim,
complainant indicated that the following events occurred:
1. On October 7, 2008, complainant was informed that he was being
investigated on a sexual harassment complaint against himself and
management forced the employee to write a statement about him allegedly
harassing him;
2. From January 2002 to May 4, 2004, complainant was required to work
mail handler duties other than his assigned bid job;
3. On April 29, 2005, complainant was assaulted by a postal worker;
4. On May 2, 2005, complainant was placed on Emergency Placement in an
Off-Duty status;
5. Between May 2005 and June 2, 2005, his car tires were ice picked.
6. On June 15, 2005, complainant was given a discussion where it was
insinuated that complainant was a racist and a liar;
7. On August 16, 2005, complainant was issued a letter of warning;
8. In 2005, complainant was issued several letters of warning;
9. In 2005, his lunch was tossed and his locker was broken into;
10. On an unspecified date, complainant was denied FMLA until he
complained to the Senior Manager, Distribution Operations.
11. For 3 1/2 years, complainant was called Sponge Bob over the intercom;
and
12. In September 2008, his car was keyed.
The agency dismissed the complaint noting that complainant failed to
contact the EEO Counselor in a timely manner. The agency also dismissed
the complaint for failure to state a claim.
Complainant appealed indicating that the agency failed to identify his
complaint claim of harassment. He asked that the Commission reverse
the agency's final decision. The agency requested that we affirm
its dismissal. In particular, the agency argues that the complaint
is merely a extension of his prior complaint which was subject of EEOC
Appeal No. 01A60490 (April 21, 2006), req. for reconsid. denied, EEOC
Request No. 05A60758 (June 16, 2006).
The regulation set forth at 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).
As to the first event, we note that the agency's dismissal was
appropriate. We note that complainant was not harmed by the allegation.
Further, the claim of harassment did not arise from the same individuals
involved in the remaining claims. As such, we find that the accusation
of harassment is properly dismissed.
To the extent the agency asserted that the complaint is merely an
extension of complainant's prior EEO complaint, we disagree. In EEOC
Appeal No. 01A60490, complainant claimed that he was discriminated
against on June 15, 2005, the Manager of Distribution Operations (MDO)
gave him a job discussion for an incident that occurred on April 29, 2005.
Upon review, we find that event (6) is the same as the event alleged in
the prior complaint. As such, event (6) was properly dismissed. However,
the other events raised were not alleged in the prior complaint. As such,
we find the agency's assertion that the instant complaint as a whole is
the same as the one raised in EEOC Appeal No. 01A60490 is not supported.
We note that complainant alleged a claim of harassment. 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.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
In his complaint, complainant alleged a series of events which allegedly
occurred from January 2002 through September 2008. 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 complained of). 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.
The agency also dismissed the complaint for untimely EEO Counselor
contact. EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency
shall dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c). EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides
that an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory
or, in the case of a personnel action, within 45 days of the effective
date of the action. In National Passenger Corporation v. Morgan, 536
U.S. 101, 117 (2002), the Supreme Court held that a harassment claim will
not be time barred if all incidents constituting the claim are part of
the same unlawful practice and at least one incident falls within the
filing period.
Upon review of the record, complainant contacted the EEO Counselor
on October 7, 2008. Based on the list of events that constitute
complainant's claim of harassment, we find that at least one event
occurred within the 45-day time period. As such, we find that complaint
at hand was improperly dismissed pursuant to 29 C.F.R. �1614.107(a)(2).
CONCLUSION
Accordingly, upon review of the record, we reverse that the agency's
dismissal of complainant's claim of harassment as a whole and remand
the claim for further processing as ordered below.
ORDER (E0408)
The agency is ordered to process the 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 (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 9, 2009
__________________
Date
3
0120091331
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120091331