01a00661
05-25-2000
Victor A. Davis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Victor A. Davis, )
Complainant, )
)
) Appeal Nos. 01A00661
v. ) 01A00964
) Agency Nos. 4-H-390-0241-99
William J. Henderson, ) 4-H-390-0221-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On July 11, 1999, complainant contacted an EEO counselor concerning
a series of incidents. After counseling, he filed a formal complaint
alleging discrimination on the bases of age, physical disability (skin
cancer), and mental disability (stress) when: (1) on May 15, 1999,
his supervisor openly called him a violent person; (2) on May 15, 1999,
his supervisor began to follow complainant on the street, stared at
complainant while he worked, and followed complainant into the restroom
to order him not to apply sun screen while on the job; (3) on May 25,
1999, his supervisor told him that some substitute route carriers deliver
the route faster than complainant does; and (4) on June 2, 1999, his
supervisor accused complainant of not having both hands on the steering
wheel. The agency dismissed the complaint (Agency No. 4-H-390-0204-99),
and complainant appealed to this Commission. By decision dated March
9, 2000, we reversed the agency's dismissal, and ordered the claims to
be processed �as a claim of ongoing harassment.� See Davis v. United
States Postal Service, EEOC Appeal No. 01A00712 (March 9, 2000).<1>
Meanwhile, complainant again contacted an EEO Counselor on August 12,
1999. Complainant filed another formal complaint, dated September 14,
1999 (Agency No. 4-H-390-0221-99), on the basis of reprisal for prior
EEO activity in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. In this complaint, complainant
alleged that on July 31, 1999, his supervisor was trying to provoke
complainant by following him closely while complainant loaded a vehicle,
constantly writing in a note pad, telling complainant how to load the
mail, telling complainant not to talk to him (the supervisor), and
repeatedly stating, �lets go.�
On October 5, 1999, the agency dismissed Agency No. 4-H-390-0221-99 for
failure to state a claim. Specifically, the agency found that complainant
failed to allege any concrete harm, and suffered no actionable harm from
the supervisor's actions. On November 2, 1999, complainant filed a timely
appeal (01A00964).<2> The Commission accepts Appeal No. 01A00964 for
review pursuant to 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified
at 29 C.F.R. � 1614.405).
Complainant contacted a counselor for a third time on August 24,
1999, and filed a third formal complaint on September 14, 1999 (Agency
No. 4-H-390-0241-99). Complainant alleged that in reprisal for prior EEO
activity, he received a Letter-of-Warning (LOW) on August 23, 1999, for
failing to follow instructions on July 26, 1999. Complainant contended
that he never failed to follow instructions, and that the incident
described, occurring on July 26, 1999, did not take place as described
in the LOW.
By letter dated September 27, 1999, the agency accepted one claim from
Agency No. 4-H-390-0241-99, defined as, �[complainant was] issued a
letter of warning in the presence of other employees.� On October
1, 1999, complainant requested that the agency also investigate the
underlying July 26, 1999 incident. In a final decision dated October
8, 1999, the agency refused to expand the scope of investigation.
The agency found that the July 26, 1999 incident serves as background
information �used to predicate� the LOW, but did not provide adequate
grounds for a separate claim. Complainant timely appealed this final
decision concerning 4-H-390-0241-99 on November 2, 1999 (01A00661).
The Commission also accepts Appeal No. 01A00661 for review pursuant to
29 C.F.R. � 1614.405.
On appeal, complainant argues, through his attorney, that all three of
complainant's complaints concern a continuing pattern of harassment
at the hands of complainant's supervisor occurring from May through
July 1999. He contends that when considered together with his other
harassment claims, the claims appealed in 01A00661 and 01A00964 allege
sufficient injury to state a claim.
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. 01A00661 and 01A00964 in the present decision.
The Commission requires agencies to address the �pattern aspect� of
harassment claims to avoid a piecemeal dismissal of matters united by an
analogous theme. See Meaney v. Department of the Treasury, EEOC Request
No. 05940169; see also Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), ch.5, III, p. 5 (November 9, 1999).
When analyzing harassment claims to determine whether they state a claim,
the Commission requires that all incidents be considered together, and
in a light most favorable to complainant. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). This analysis
may include claims from different formal complaints. See id. (analyzing
claims from several different complaints together to determine whether
an actionable claim of harassment exists).
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.
In the present case, complainant clearly alleges a pattern of harassment
occurring from May 1999 through July 1999. All of the matters alleged
concern how complainant was treated by one supervisor. The dismissal
appealed in 01A00964 improperly fragmented complainant's claim of
harassment. When considered together with the other incidents, the
matters raised in 01A00964 state a claim. Similarly, complainant's
concern with the incident occurring on July 26, 1999 is not merely
background evidence; it is part of the overriding claim of harassment,
and must be investigated
CONCLUSION
Accordingly, the dismissals appealed in 01A00661 and 01A00964 are
REVERSED, and the incidents, as defined above, are REMANDED to be
consolidated and investigated as an ongoing claim of harassment.
ORDER
The agency is ORDERED to consolidate the remanded claims with
complainant's other pending complaint, Agency No. 4-H-390-0204-99.
Thereafter, the agency shall process the consolidated complaint 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
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 (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:
May 25, 2000
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 1We noted that complainant alleged a �series of events
. . . occurr[ing] from May 1999 through July 1999.�
2On 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.