01982290_r
04-16-1999
Andre D. Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Andre D. Smith, )
Appellant, )
) Appeal No. 01982290
v. ) Agency No. 1-G-781-0084-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On January 26, 1998, appellant filed a timely appeal of a December 29,
1997 final agency decision dismissing his complaint for failure to state
a claim.
In its final decision, the agency framed the allegations of appellant's
November 17, 1997 complaint as whether appellant was discriminated
against on the bases of race (Black), sex (male national origin
(African American), age (40), physical disability (hearing impaired),
and in retaliation for prior EEO activity when on July 19, 1997, the
following occurred:
1. his supervisor asked him to perform her job;
2. his supervisor made harassing comments about his wife; and
3. his supervisor threatened him with disciplinary action.
In dismissing the allegations, the agency stated that appellant was
not aggrieved because he had not suffered a harm or loss. The agency
also noted that appellant had not shown that the comments were part of
a pattern of harassment, that no disciplinary action was taken against
appellant as a result of the supervisor's alleged threat and that an
official discussion did not rise to the level of a cognizable claim.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint or a portion of a complaint which fails to state a
claim pursuant to 29 C.F.R. �1614.103 or �1614.106(a). An agency shall
accept a complaint from any aggrieved employee who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or a disabling condition.
See 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).
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 (March
13, 1997).
In an affidavit attached to his complaint, appellant stated that on
July 12, 1997 and July 19, 1997, his supervisor asked him to assist
her on the computer, although working on the computer was not one
of his duties as a mail handler but was the duty of a supervisor.
When he informed his supervisor that computer work was not his duty and
could not be delegated, she told him that that was the reason he was no
longer a supervisor. Appellant stated that he had worked in the same
job capacity as his supervisor, who had occupied that position for
about two weeks, and that he did assist his supervisor on both dates.
While working on the computer on July 19, 1997, his supervisor asked
him personal questions about his relationship with his wife, including
why had he married a white woman, his wife's age, did he love his wife,
how secure was his relationship with his wife and how many children did
he have. The supervisor also told him that everyone had heard about his
wife but that appellant's marital status did not mean anything to her.
Appellant also stated that when he told his supervisor on July 19, 1997,
that he was going to return to his duties, she told him that she was
placed in her position for a reason and that appellant should better
watch himself. Appellant stated that since then, his supervisor has
continued to make comments that he had better watch himself. Appellant
further stated that his supervisor also told him that he walked around
with his "head up his butt," that she was going to make him pay for not
helping her and that no one wanted him to work for the agency.
Appellant's affidavit reflects further that he did not clock out for lunch
on July 19, 1997. When he returned from lunch, at least 10 employees
approached him and told him that his supervisor was looking for him,
told him that he was in a lot of trouble and made innuendoes about her
looking for him. Appellant also stated in his affidavit that that day
and thereafter, employees have continued to make comments to him about
his supervisor looking for him.
Appellant's affidavit also discloses that appellant's supervisor
approached him to tell him that she had been looking for him for 30
minutes and that the Acting Manager of Distribution Operations needed
him to take an item to the dock. Appellant stated that the task that
the Acting Manager of Distributions wanted him to do was not within
his duties. Appellant further stated that although other employees were
not required to do so, his supervisor informed him then that he had to
request permission from her to take breaks and to go to lunch.
Appellant further stated in his affidavit that later on July 19, 1997,
he was informed by his supervisor that he had to attend a meeting but
was not informed as to the nature of the meeting. Appellant informed his
Supervisor that his legal representative had advised him that he was not
to meet with anyone unless he was present. Appellant told his supervisor
that he needed an interpreter to assist him at the meeting because he had
difficulty hearing and understanding her. Appellant's supervisor told him
that she would provide him with notes from the meeting. Appellant also
was told that if he did not attend the meeting, he would be reported
for insubordination. Appellant stated that despite his requests, his
supervisor still has not provided him with notes of the meeting.
Appellant's affidavit reveals that appellant's supervisor, another
supervisor (Person A) and the shop steward attended the meeting. Person A
allegedly told appellant that he was there on behalf of appellant's
supervisor to show her how to handle similar situations. At the time,
appellant was told that he had to show respect for all supervisors.
When he denied being disrespectful, his supervisor stated that she did not
appreciate being called "a head up her behind." Appellant further stated
that Person A then told him that he would not want anyone talking to
his wife in that manner and appellant asked that his wife be left out of
the discussion. Appellant also stated that the meeting was a retaliatory
action because he would not perform the duties of his supervisor.
Among other things, appellant asserts, through counsel on appeal, that
his supervisor's failure to provide him with an interpreter was a form
of retaliation and that the agency's failure to accommodate him by not
providing an interpreter and denying him the presence of his legal
representative at the July 19, 1997 meeting violated discrimination
statutes, the collective bargaining agreement and The Memorandum of
Understanding of Reasonable Accommodation for the Deaf and Hard of Hearing
and subjected him to disparate treatment. Appellant also asserts that
he was subjected to disparate treatment when his supervisor ordered a
"search party" for him on July 19, 1997, and in so doing, he was subjected
to public humiliation and ridicule.
We find that the agency's dismissal of allegation 1 was improper.
Because appellant is alleging in allegation 1 that he had to perform a
duty that was not part of his job, the allegation states a claim since the
agency's action affects a term, condition or privilege of his employment.
Regarding allegations 2 and 3, we find that the agency's dismissal was
also improper.
The Commission has consistently held that a remark or a comment,
unaccompanied by concrete action, is not a direct and personal deprivation
sufficient to render an individual aggrieved. Banks v. Department of
Health and Human Services, EEOC Request No. 05940481 (February 16, 1995;
Fuller v. U.S. Postal Service, EEOC Request No. 05910324 (May 2, 1991).
However, the Commission has also held that allegations which may not,
standing alone, demonstrate an injury or harm, may, when considered in
conjunction with other allegations raised in a complaint, state a claim
for relief for a pattern of conduct demonstrating harassment. See Reda
v. U.S. Postal Service, EEOC Request No. 05950934 (March 7, 1996).
Appellant's complaint makes it clear that he is alleging that he
was subjected to harassment and a hostile work environment and that
he continues to be subjected to comments by his supervisor and his
co-workers. Appellant identified other incidents, in addition to the
identified allegations, that occurred on July 19, 1997, which reveal a
broader claim of harassment and a hostile work environment. Nonetheless,
the agency defined appellant's complaint as consisting of only three
allegations. The Commission has previously held that an agency should not
ignore the "pattern aspect" of a complainant's allegations and define the
issues in a piecemeal manner where, as here, an analogous theme unites the
matters complained of. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994). Moreover, the Commission finds that the
agency also failed to address other allegations raised in appellant's
complaint. For example, appellant alleged that on July 19, 1997, his
supervisor required that he, unlike other employees, had to request
permission before taking lunch or breaks. Appellant also alleged that
the agency failed to accommodate his disability by refusing to provide
him with an interpreter. The Commission deems the agency's failure to
address all of the allegations of appellant's complaint to be tantamount
to a dismissal of those matters. See Kapp v. Department of the Navy,
EEOC Request No. 05940662 (January 23, 1995). Even if the agency believes
that an allegation in appellant's complaint should be dismissed, it may
not ignore or fail to address the allegation as part of the complaint.
See Egington v. U.S. Postal Service, EEOC Appeal No. 01961079 (December
23, 1996). The appropriate procedure is for the agency to identify
all of the allegations raised and then issue a notice of acceptance
indicating the allegations that will be investigated and/or a final
decision dismissing allegations pursuant to 29 C.F.R. �1614.107. Id.
Consistent with our discussion herein, the agency's dismissal of
appellant's complaint is REVERSED and the complaint is REMANDED to the
agency for further processing.
ORDER
The agency is ORDERED to take the following actions:
1) Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall acknowledge to appellant that it has received
his remanded complaint and specifically identify all the allegations
raised in appellant's complaint to be processed.
2) Thereafter, the agency shall resume processing appellant's complaint in
accordance with 29 C.F.R. �1614.108. 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 acknowledgement 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 below.
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:
April 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations