Satish Daniel, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 30, 2000
01a03438 (E.E.O.C. Nov. 30, 2000)

01a03438

11-30-2000

Satish Daniel, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Satish Daniel v. United States Postal Service

01A03438, 01A05129, and 01A05130

November 30, 2000

.

Satish Daniel,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal Nos. 01A03438, 01A05129, and 01A05130

Agency Nos. 4K-210-0179-99, 4K-210-0049-00, and 4K-210-0064-00

DECISION

Upon review, the Commission finds that the complainant's complaints,

Agency No. 4K-210-0179-99, Appeal No. 01A03438 and Agency

No. 4K-210-0064-00, Appeal No. 01A05130, were improperly dismissed

pursuant to 29 C.F.R. � 1614.107(a)(1).<1> The Commission further finds

that one of the complainant's complaints, Agency No. 4K-210-0049-00,

Appeal No. 01A05129, addresses matters currently before the Commission

in Agency No. 4K-210-0179-99, Appeal No. 01A03438. Accordingly, the

Commission will dismiss Appeal No. 01A05129, Agency No. 4K-210-0049-00

pursuant to 29 C.F.R. � 1614.107(a)(1).

Complaint No. 4K-210-0179-99 (Appeal No. 01A03438)

In a complaint dated February 23, 2000, the complainant alleged that he

was discriminated against on the bases of race (Asian Indian), national

origin (Asian Indian), age (56) and retaliation when:

on July 29, 1999, a supervisor (SR) passed degrading remarks when

she accused him of opening other people's mail when the letter was

addressed

to him as a Union Official;

on August 26, 1999, he was harassed, insulted and humiliated by another

supervisor (SP) when he yelled at him, questioned what he was doing and

ordered him back to his case;

on December 16, 1999, he felt threatened and worried when SP stated in

a very serious and threatening tone that �he was going to set fire to his

feet;�

on January 12, 2000, the Postmaster (PM) accused him of filing a

complaint against him and insinuated that he was discriminating against

them; and

A CA-2 Submitted on July 23, 1993, was not submitted for processing

until January 1999.

On March 30, 2000, the agency issued a final decision (FAD) dismissing

claims (1) - (4) for failure to state a claim pursuant to 29 C.F.R. �

1614.107(a)(1). The agency also dismissed claim (5) pursuant to 29

C.F.R. � 1614.107(a)(2), for untimely counselor contact.

The regulation set forth at 29 C.F.R. � 1614.107(a)(l)) 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,

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 (April 21, 1994).

However, in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993),

the Supreme Court found that harassment is actionable, even absent a

claim that an agency's action harmed complainant in a specific term,

condition or privilege of employment, as long as the complainant can

otherwise demonstrate that the conduct was engaged in with the purpose of

creating a hostile work environment, and that it was sufficiently severe

or pervasive as 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).

Here, we find that claims (1) through (3) of the complainant's complaint

are incidents of the alleged ongoing retaliation, which we believe to

be the gravamen of the complainant's complaint.

Record evidence shows that from the precomplaint stage where the

complainant states that SP is �always looking for some reason to harass

me,� to his formal complaint where he states �management is harassing

and intimidating me continuously,� the complainant has alleged an ongoing

pattern of harassing retaliation.

Under present Commission policy, claimed retaliatory actions which can

be challenged are not restricted to those which affect a term, condition,

or privilege of employment. Instead, a complainant is protected from any

discrimination which is reasonably likely to deter protected EEO activity.

See EEOC Compliance Manual Section 8, �Retaliation;� No. 915.003 (May 20,

1998), p. 8-15.

We note that in the complainant's claim (4), he is alleging that the

PM's statement to him was an insinuation that he was discriminating

against them (the PM and the supervisors) and that the PM threatened

to file a complaint against the complainant. Generally, a remark

or comment unaccompanied by concrete action is not a direct and

personal deprivation sufficient to render an individual aggrieved and,

therefore, such an allegation would fail to state a claim pursuant

to 29 C.F.R. � 1614.107(a)(1). See Simon v. U.S. Postal Service,

EEOC Request No. 05900866 (October 3, 1990). In the case at hand, the

Postmaster's alleged remarks, rather than encouraging the realization of

equal employment opportunity in the workforce, could have a potentially

chilling effect on the ultimate tool that employees have to enforce equal

employment opportunity, the filing of an EEO complaint. See George

v. U.S. Postal Service, EEOC Request No. 05980451 (October 8, 1998).

EEOC Regulation 29 C.F.R. 1614.101(b) provides that no person shall

be subject to retaliation for opposing any practice made unlawful

under the discrimination statutes or for participating in any stage of

administrative or judicial proceedings under those statutes. In Crespo

v. U.S. Postal Service, EEOC Request No. 05920842 (September 17, 1993),

the Commission held that:

The agency has a continuing duty to promote the full realization of

equal employment opportunity in its policies and practices. This duty

extends to every aspect of agency personnel policy and practice in the

employment, advancement, and treatment of employees. Agencies shall,

among other things, insure that managers and supervisors perform in

such a manner as to effectuate continuing affirmative application and

vigorous enforcement of the policy of equal opportunity.

Accordingly, we note that if the PM made the alleged remarks, it could

have a chilling effect on the complainant and therefore does state a

claim.

As to claim (5), the record discloses that the alleged discriminatory

event occurred on January 23, 1993, but the complainant did not initiate

contact with an EEO Counselor until August 26, 1999,

which is beyond the forty-five (45) day limitation period. On appeal,

no persuasive arguments or evidence have been presented to warrant an

extension of the time limit for initiating EEO contact.

Accordingly, the agency's FAD dismissing complainant's claims (1) -

(4) for failure to state a claim is REVERSED. The agency's dismissal

of the complainant' claim (5) is AFFIRMED. Claims (1) - (4) of the

complainant's complaint are hereby REMANDED for further processing in

accordance with the Order below.

Complaint No. 4K-210-0049-00 (Appeal No. 01A05129)

The Commission finds that this complaint is identical to Agency

No. 4K-210-0179-99, Appeal No. 01A03438, addressed above. Accordingly,

Appeal No. 01A05129 is DISMISSED pursuant to 29 C.F.R. � 1614.107(a)(1).

Complaint No. 4K-210-0064-00 (Appeal No. 01A05130)

In a complaint dated May 30, 2000, the complainant alleged that he was

discriminated against on the bases of race (Asian Indian), national origin

(Asian Indian), and retaliation when on March 3, 2000, he received his

paycheck and discovered that on February 25, 2000, his lunch had been

taken out for the Leave Without Pay (LWOP) that he had requested for a

doctor's appointment.

In its FAD, the agency dismissed the compliant pursuant to 29

C.F.R. 1614.107(a)(1), because it found that the complainant was not

aggrieved because the error in pay had been corrected in the pay period

ending April 7, 2000.

On appeal, the complainant alleges that SP directed the timekeeper to take

the LWOP action as another act of retaliation. As discussed above, the

agency should not dismiss a complaint 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).

Accordingly, the agency's FAD is REVERSED and the complaint is REMANDED

to the agency to be consolidated with Complaint No. 4K-210-0179-99

(Appeal No. 01A03438) for further processing as a claim of continuing

harassment in accordance with this decision and applicable regulations.

ORDER (E0800)

The agency is ORDERED to consolidate and process all of the remanded

claims contained in the remanded complaints 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 (K0800)

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)(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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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

November 30, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.