01A61897
08-31-2006
Anthony L. Key, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony L. Key,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61897
Agency No. 1C-188-0010-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 22, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination and
harassment on the basis of race (African-American) when:
1. On August 23, 2005, complainant was placed in off-duty status
with pay; and
2. On September 12, 2005, he was issued a Proposed Notice of
Removal.
The agency dismissed claim (1) for failure to state a claim noting that
complainant did not sustain any injury or harm for he was in off-duty
status with pay. As for claim (2), the agency indicated that this was a
preliminary step and that complainant had not shown that he was
subsequently removed. Further, the agency asserted that complainant was
returned to work "pending adjudication through the appeals process."
Finally, the agency determined that there were isolated incidents that were
not severe or pervasive enough to create a hostile work environment.
Therefore, the agency dismissed complainant's complaint to the extent he
asserted a claim of harassment. This appeal followed.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) 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, .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).
A review of the record reveals that the supervisor placed complainant in
emergency off-duty status and memorialized his status by memorandum dated
August 23, 2005. The memorandum clearly indicated that complainant was
placed in such an off-duty status for engaging in serious misconduct
adversely affecting the agency. Both the tone and content of the
memorandum suggest that it is disciplinary in nature, and not merely
instructive or cautionary. We find that the harm is in the existence of
this disciplinary action, not on whether complainant was paid during the
duration of his off-duty status. As such, we find that complainant states a
claim of discrimination as to claim (1). Therefore, we find that the
agency erred in dismissing claim (1).
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,
that the agency shall dismiss a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. The Commission has held that if a complainant
alleges that the proposal or preliminary step was taken for the purpose of
harassing them for a prohibited reason, the agency may not dismiss the
issue as preliminary because, allegedly, the matter already has adversely
affected the complainant. See Henry v. United States Postal Serv., EEOC
Request No. 05950229 (November 22, 1995); EEOC Management Directive 110 (MD-
110) (November 9, 1999), at 5-22, note 10. Because complainant alleges
that the preliminary step of proposing removal was taken for the purpose of
harassing him for a prohibited reason, we find that the agency's dismissal
of claim (2) pursuant to 29 C.F.R. � 1614.107(a)(5) was improper.
In determining whether a harassment complaint states a claim in cases where
a complainant had not alleged disparate treatment regarding a specific
term, condition, or privilege of employment, the Commission has repeatedly
examined whether a complainant's harassment claims, when considered
together and assumed to be true, were sufficient to state a hostile or
abusive work environment claim. See Estate of Routson v. National
Aeronautics and Space Administration, EEOC Request No. 05970388 (February
26, 1999).
Consistent with the Commission's policy and practice of determining whether
a complainant's harassment claims are sufficient to state a hostile or
abusive work environment claim, the Commission has repeatedly found that
claims of a few isolated incidents of alleged harassment usually are not
sufficient to state a harassment claim. See Phillips v. Department of
Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v.
Health and Human Services, EEOC Request No. 05940481 (February 16, 1995).
Moreover, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved for the
purposes of Title VII. See Backo v. United States Postal Service, EEOC
Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No.05940695 (February 9, 1995). Upon review, we find
that the complaint at hand states a claim of harassment. Therefore, we
find that the agency's dismissal of the complaint was inappropriate.
Accordingly, we reverse the agency's final decision dismissing the
complaint and remand claims (1) and (2) for further processing as ordered
below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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 (K0501)
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) (1994 & Supp. IV 1999). 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 (M0701)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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
August 31, 2006
__________________
Date