Willie McNeal, III, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency

Equal Employment Opportunity CommissionOct 1, 1999
01982993 (E.E.O.C. Oct. 1, 1999)

01982993

10-01-1999

Willie McNeal, III, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency


Willie McNeal, III v. United States Postal Service

01982993

October 1, 1999

Willie McNeal, III, )

Appellant, )

) Appeal No. 01982993

v. ) Agency No. 4-H-335-0023

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency )

)

)

DECISION

INTRODUCTION

Appellant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from the final decision of the agency concerning

his allegations of discrimination in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal

is accepted by the Commission in accordance with the provisions of EEOC

Order No. 960.001.

ISSUE PRESENTED

The issue on appeal is whether the agency improperly dismissed appellant's

appeal for failure to state a claim.

BACKGROUND

On August 21, 1997, appellant initiated EEO counseling alleging

discrimination based on race (Black), sex (male), and religion (Jehovah's

Witness), when on August 6, 1997, his supervisor assaulted him with a

barrage of harassing and intimidating threats, loud talk, insulting and

denigratory remarks and insinuations while appellant tried to verify his

stamp requisition. When appellant asked to speak to a shop steward to

complain, the supervisor told him he was writing appellant up for poor

performance, and told him he was a real case.

Appellant attached to his request for counseling several pages of

narrative descriptions of alleged harassment occurring from October 1996,

to that date. Appellant alleged that he was denied time to verify his

stamp requisitions, resulting once in a shortage of $467.12, that his

requisitions were delayed, that he was unduly scrutinized and spied on

by his supervisor, and that he was not awarded his 30 year service pin.

The EEO counselor's report addressed only the alleged harassment occurring

on August 6, 1997. On November 18, 1997, appellant filed a formal EEO

complaint. Appellant did not specify his allegations of discrimination

in the complaint, but referred to his previously submitted documentation.

On February 2, 1998, the agency issued a final decision dismissing

appellant's complaint for failure to state a claim. The agency addressed

only the supervisor's alleged remark that appellant was a real case, and

found this did not cause a direct deprivation of any employment benefit.

ANALYSIS AND FINDINGS

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

and 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. 21, 1994).

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall

dismiss a complaint that fails to state a claim under �1614.103.

In its review of appellant's complaint, the agency limited the issue to

whether the supervisor's August 6, 1997, remarks were discriminatory. A

review of the record as a whole, however, showed that appellant was

alleging discriminatory harassment.

The Commission recently reaffirmed what is required in harassment cases

to state a claim under the above regulation. See Cobb v. Dept. of

the Treasury, EEOC Request No. 05970077 (March 13, 1997). In Cobb,

the Commission instructed that claims of harassment should be accepted

where the complainant has made factual allegations which, when considered

together<1> and treated as true, are sufficient to state a claim either

of (1) disparate treatment regarding hiring, termination, compensation

or any other specific term, condition, or privilege of employment;

or (2) a hostile or abusive work environment. Cobb, at p. 7. The

Commission held that "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 .... [T]he trier of fact should consider whether

a reasonable person in the complainant's circumstances would have found

the alleged behavior to be hostile or abusive." Cobb, at pp. 6-7.

The Commission finds that appellant's complaint is sufficient to state

a claim of discriminatory harassment. In addition to the supervisor's

remark, appellant's narrative notes several incidents of undue scrutiny

and delays in providing him work supplies over a period of several

months. On remand, appellant shall have the opportunity to meet with

an EEO counselor to more closely define the substance of his harassment

allegations.

CONCLUSION

Accordingly, the agency's decision to dismiss appellant's complaint for

failure to state a claim hereby is REVERSED.

ORDER

The agency is ORDERED to process the remanded complaint in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded complaint within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request. A copy of the agency's

letter of acknowledgment to appellant and a copy of the notice that

transmits the investigative file and notice of rights must be sent to

the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that you

have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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

Oct. 1, 1999

________________________ _______________________

DATE Carlton Hadden, Acting Director

Office of Federal Operations

1 The Commission stated that, when considering whether a harassment

complaint states a hostile or abusive work environment claim, the decision

maker must consider all of the alleged harassing incidents and remarks.