Roberto G. Salinas, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 31, 2000
01992063 (E.E.O.C. May. 31, 2000)

01992063

05-31-2000

Roberto G. Salinas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Roberto G. Salinas, )

Complainant, )

)

) Appeal No. 01992063

v. ) 01A00839

) Agency No. 1-G-784-0010-98

William J. Henderson, ) 1-G-784-0007-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On May 5, 1998, complainant filed a formal complaint of discrimination,

Agency No. 1-G-784-0007-98, asserting violations of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

He claimed to suffer harm on the bases of national origin and reprisal for

prior EEO activity when he was subjected to a hostile work environment

on an ongoing basis, and was denied various pay opportunities, higher

pay, job upgrades, and promotions. The complaint identified specific

incidents occurring from 1992 through 1997.

By decision dated May 26, 1998, the agency dismissed the entire complaint

for untimely counselor contact. Complainant appealed to this Commission,

and we affirmed the dismissal with regard to incidents occurring prior

to December 29, 1997, but remanded the complaint for a determination of

what �ongoing� incidents occurred after that date. See Salinas v. United

States Postal Service, EEOC Appeal No. 01985267 (July 30, 1999).

On remand, complainant's attorney identified nine additional incidents

of harassment. The agency issued a new final decision on October 12,

1999, concerning these claims. In its decision, the agency defined the

claims as:

On January 5, 1998, complainant participated in a local

demonstration/picketing, and has been retaliated against since then;

On January 26, 1998, complainant received notice of his non-merit

rating;

On March 20, 1998, complainant was left out of the normal

chain-of-command when he was not included in the parking lot project;

On March 16, 1998, complainant was left-out of a major expansion

project;

On May 4, 1998, complainant was left-out of �the loop� concerning

the final construction inspection and acceptance of the new Hidalgo,

TX post office;

On August 5, 1998, complainant was subjected to a hostile work

environment when he was called a �horse's ass� by an Industrial

Engineer;

On August 18, 1998, complainant's request for a computer was denied;

On September 3, 1998, complainant was not provided detail opportunities;

and

On September 9, 1998, another manager voiced a complaint that complainant

had not given overtime to a certain employee.

The agency dismissed claim (1) because, �standing alone� it failed to

state a claim. Claim (2) was dismissed for raising the same matter

alleged in a prior complaint, Agency No. 1-G-784-0008-98. The agency

explained that it could not include claims (3) - (9) with the present

complaint because they occurred after counseling. These claims were

referred to an EEO Counselor for counseling.

On December 21, 1998, complainant received the October 12, 1999 decision,

and promptly appealed on January 12, 1999 (Appeal No. 01A00839).

The appeal is timely, and is accepted for review pursuant to 64

Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. �

1614.405).<1>

Meanwhile, complainant sought EEO counseling on August 21, 1998,

contending that he was called a �horse's ass� when attempting to

communicate with an Industrial Engineer; he did not mention any �ongoing�

or continuing harassment. On September 24, 1998, he filed a formal

complaint, Agency No. 1-G-784-0010-98, on the bases of national origin

and reprisal regarding this incident.

On December 15, 1998, the agency issued a final decision dismissing

Agency No. 1-G-784-0010-98 for failure to state a claim. Specifically,

the agency found that complainant was not harmed because he suffered

no discipline or change in schedule, and lost no wages or benefits.

The agency also found no proof of a pattern of harassment.

Complainant appealed this dismissal to the Commission on January 12,

1999 (Appeal No. 01992063). On appeal, complainant argues, through

his attorney, that the claim is part of a pattern of harassment.

This appeal is timely, and also is accepted for review pursuant to

64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. �

1614.405) .

ANALYSIS AND FINDINGS

EEOC Regulations allow the Commission to consolidate two or more

complaints filed by the same complainant. See 64 Fed. Reg. 37,644, 37,661

(1999) (to be codified and hereinafter cited as 29 C.F.R. � 1614.606).

Consolidation is encouraged to avoid the fragmentation of claims,

and to use Commission resources more efficiently. See generally Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO

MD-110), ch.5, sec. III (November 9, 1999). Therefore, the Commission

consolidates Appeal Nos. 01992063 and 01A00839 in the present decision.

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 that the agency shall

dismiss a complaint that states the same claim that is pending before or

has been decided by the agency or Commission. The agency dismissed claim

(2) from 01A00839 for stating the same claim raised in 1-G-784-0008-98,

but the record does not contain any documents from 1-G-784-0008-98.

Therefore, the Commission cannot find that claim (2) of 01A00839 has

been raised in a prior complaint; the agency's dismissal of the claim

must be reversed.

Claim (6) from 01A00839 and all of 01992063, however, clearly involve

the same incident. Therefore, the Commission finds that claim (6)

of 01A00839 should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).

Concerning claims (3) - (9) of 01A00839, the agency failed to identify a

specific authority under 64 Fed. Reg. 37,644, 37,656 (199) (to be codified

as 29 C.F.R. � 1614.107(a)) for dismissing the claims. Given the agency's

instruction that complainant seek counseling, the Commission presumes that

the agency dismissed the claims for failing to bring them to the attention

of an EEO Counselor, 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)).

Dismissal on this basis is only appropriate when complainant has not

raised the claims with an EEO Counselor, and the claims are not like or

related to a matter brought to the EEO Counselor's attention. See 29

C.F.R. � 1614.107(a)(2).

A later claim is "like or related" to the original complaint if the

later claim adds to or clarifies the original complaint and reasonably

could have been expected to grow out of the original complaint during

the investigation. See Scher v. United States Postal Service, EEOC

Request No. 05940702 (May 30, 1995). Complainant raised an ongoing

pattern of hostile work environment harassment that included denials

of pay opportunities, higher pay, job upgrades, and promotions. In its

prior decision, the Commission requested additional information of the

harassing incidents occurring after December 29, 1997, and claims (1)

- (9) from 01A00839 responded to that order. Clearly, these claims,

concerning the same types of harassment raised in the original complaint,

are like-or-related to complainant's harassment claim. Therefore, the

agency's dismissal of claims (3) - (9) for failing to raise the issues

with an EEO Counselor was improper.

We note, however, that 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.

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).

Complainant's claims, when viewed together, involve an actionable pattern

of harassment. The claim raised in 01992063 must be considered in light

of his claims from 01A00839. See Cobb v. Department of the Treasury,

supra, (considering claims from separate complaints and appeals together

to identify a claim of harassment). Therefore, this incident, which by

itself may not state a claim, cannot be dismissed when considered part

of a pattern of harassment.

With regard to claim (1), however, we find that dismissal was proper.

Claim (1) does not identify any adverse action of any kind, but rather,

it merely clarifies the basis of retaliation. Therefore, claim (1)

does not state a claim.

CONCLUSION

Accordingly, the agency's dismissal of 01992063 is REVERSED, and the

claim is REMANDED for investigation. Concerning 01A00839, the agency's

dismissal of claims (1) and (6) is AFFIRMED, but its dismissal of claims

(5), (7), (8), and (9) is REVERSED, and the claims are REMANDED for

investigation.

ORDER

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 consolidate

the remanded claims for a single investigation pursuant to 29 C.F.R. �

1614.606. The agency shall acknowledge to the complainant that it has

received and consolidated 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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action in

an appropriate United States District Court WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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:

May 31, 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.