01a52189
04-29-2005
Samuel A. Dawes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Samuel A. Dawes v. United States Postal Service
01A52189
04-29-05
.
Samuel A. Dawes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52189
Agency No. 4H-310-0014-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision, 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
(African-American), national origin (Jamaican), and sex (male) when:
On July 14, 2004, and July 22, 2004, he was denied incidental leave for
an appointment;
On September 11, 2004, he was denied a request for eight hours leave; and
On November 1, 2004, his supervisor threw a parcel at him in anger.
On December 23, 2004, the agency dismissed complainant's complaint.
Specifically, it found that issues (1) and (2) were untimely raised
because complainant failed to initiate EEO Counselor contact within 45
days of the allegedly discriminatory incidents. It also determined
that issue (3) failed to state a claim because complainant failed to
show that he suffered a harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy.
On appeal, complainant asserts that he was treated disparately by his
supervisor on almost a daily basis. He further states that he would like
to work in an environment where he did not feel threatened or harassed.
Finally, he provides statements from numerous witnesses regarding the
November 1, 2004 incident and other similar encounters between complainant
and his supervisor that the witnesses have described as hostile.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss
a complaint or a portion of a complaint which fails to comply with the
time limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved
person is required to 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. See 29 C.F.R. � 1614.105(a)(1). EEOC Regulations further provide
for extensions to the time limit when the individual shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or
her control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission. 29
C.F.R. � 1614.105(a)(2).
The record discloses that the incidents giving rise to issues (1) and
(2) occurred on July 14, 2004, July 22, 2004, and September 11, 2004, but
complainant did not initiate contact with an EEO Counselor until November
22, 2004, which is beyond the forty-five (45) day limitation period.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. We note that each of these incidents were discrete acts,
and therefore can only be used as background evidence for complainant's
hostile work environment claim. Therefore, the Commission affirms the
agency's dismissal of issues (1) and (2).
With respect to issue (3), 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. 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).
Applying these principles to the case before us, we find that the agency
improperly dismissed issue (3). Although this claim has been defined
as only a single incident, we find that it is sufficiently severe
to constitute an actionable claim of harassment. In reaching this
conclusion, we note that we have evaluated the conduct in question from
the standpoint of a reasonable person. See Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). In addition, the Commission
finds that complainant's complaint clearly reflects complainant's intent
to allege that he was being subjected to a hostile work environment by his
supervisor. Complainant's complaint specifically states that complainant
is �degraded almost daily when spoken to by [his] supervisor.� Therefore,
issue (3) is remanded for further processing, along with complainant's
claim that he was degraded almost daily when spoken to by his supervisor.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed, in part, and reversed, in part. The Commission
remands for processing issue (3) and complainant's claim that he was
degraded almost daily when spoken to by his supervisor.
ORDER (E0900)
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 (K0501)
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)
(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 (M0701)
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
___04-29-05_______________
Date