Sandra W. Monroe, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 9, 1999
01990347_r (E.E.O.C. Dec. 9, 1999)

01990347_r

12-09-1999

Sandra W. Monroe, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Sandra W. Monroe, )

Complainant, )

)

v. ) Appeal No. 01990347

) Agency No. 4-H-310-0188-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On October 17, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on

September 19, 1998, pertaining to her complaint 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. and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.<1>

In her complaint, she alleged that she was subjected to discrimination

on the bases of sex (female), age (date of birth April 21, 1949), and

in reprisal for prior EEO activity.

In its FAD, the agency identified complainant's claim as follows:

On May 14, 1998, complainant was given an investigative interview and

subsequently referred to an Employee Assistance Program (EAP) Counselor.

The agency dismissed the entire complaint for failure to state a claim.

Specifically, the agency found that referral to an EAP Counselor did not

render complainant aggrieved. The agency also reasoned that because no

disciplinary action arose from the investigative interview, complainant

suffered no cognizable harm to a term, condition, or privilege of her

employment.

The record includes a copy of the counselor's report, dated July 27, 1998.

The report refers to �other harassment� that complainant alleges, which

included at least four incidents from June - July 1998.

The record also contains complainant's formal complaint, dated July

20, 1998. In the complaint, complainant describes a Pre-Disciplinary

Investigation and referral to EAP from her supervisor. She also

attached a document entitled �Narrative of Continuing Harassment� to

her complaint form, which lists at least four additional incidents of

alleged harassment. The incidents include:

On June 22, 1998, complainant was accused of leaving raw mail by her

supervisor;

In June 1998, the supervisor informed complainant not to work overtime,

but then assigned complainant a task that required overtime;

On July 10, 1998, the supervisor criticized complainant for �asking

too many questions� about a carrier (complainant supervised) who did

not come in to work; and

On July 14, 1998, complainant was accused of failing to follow

instructions by working overtime to complete a catalog delivery.

ANALYSIS AND FINDINGS

The Commission finds that the agency improperly defined the present

complaint. The agency failed to address several incidents of hostile work

environment harassment, although the record reveals that the EEO Office

was notified of the issues during counseling, and complainant referenced

the matter in her formal complaint. Further, the agency not only relied

on a single factual incident without reference to her other issues, but

also failed to identify the claim of discrimination that the incidents

support. See EEOC-Management Directive (110), as revised Nov. 9, 1999,

at 5-5 (distinguishing between the legal �claim� of discrimination and

the factual information supporting the claim). Accordingly, the present

complaint should be defined as follows:<2>

Complainant alleges that she was subjected to hostile work environment

harassment on the bases of sex, age, and in reprisal for prior EEO

activity. This harassment included the following incidents:

On June 22, 1998, the supervisor accused complainant of leaving

raw mail;

In June 1998, the supervisor informed complainant not to work overtime,

but then assigned complainant a task that required overtime;

On July 10, 1998, the supervisor criticized complainant for �asking

too many questions� about a carrier (that complainant supervised)

who did not come to work;

On July 14, 1998, complainant was accused of failing to follow

instructions by working overtime to complete a catalog delivery; and

On May 14, 1998, complainant was given an investigative interview and

subsequently referred to an Employee Assistance Program (EAP) Counselor.

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, 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. 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified

and hereinafter referred to as 29 C.F.R. �1614.103); �1614.106(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 (Apr. 22, 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 (Mar. 13,

1997). Consequently, when the incidents alleged are viewed together in

the context of a claim of harassment, they state a claim and the agency's

dismissal of those claims for failure to state a claim was improper.

CONCLUSION

Accordingly, the agency's dismissal is REVERSED, and the complaint,

as defined herein, is REMANDED for further processing.

ORDER

The agency is ORDERED to process the remanded claims, as defined above,

in accordance with 64 Fed. Reg. 37,644, 37,656-57 (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 (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

December 9, 1999

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant 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.

2The Commission also notes that on remand, the agency should honor

complainant's right to amend her complaint with factual support for her

harassment claim. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified

at 29 C.F.R. �1614.106(d)).