Victor A. Davis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 25, 2000
01a00661 (E.E.O.C. May. 25, 2000)

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.