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)).