Douglas H. Stup, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 5, 1998
01981081 (E.E.O.C. Nov. 5, 1998)

01981081

11-05-1998

Douglas H. Stup, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Douglas H. Stup v. United States Postal Service

01981081

November 5, 1998

Douglas H. Stup, )

Appellant, )

)

v. ) Appeal No. 01981081

) Agency No. 1K-221-0104-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The final agency decision was received by

appellant on October 22, 1997. The appeal was postmarked November 20,

1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

On May 30, 1997, appellant filed a formal complaint, alleging that he was

the victim of unlawful employment discrimination on the basis of reprisal.

In that portion of the complaint form requesting that complainants

provide details of the incidents of alleged discrimination, appellant

made reference to a statement he prepared during EEO counseling.

That statement addressed various alleged incidents of discrimination,

that were identified by appellant as "continuing retaliation, harassment,

intimidation, threats, and bullying."

On September 29, 1997, the agency issued a final decision. Therein, the

agency found that appellant's complaint was comprised of four allegations,

that were identified in the following fashion:

1. On February 11, 1997, an Acting Supervisor yelled forcefully at

appellant and told him to follow him to the office of the Manager

Distribution Operations [MDO].

2. The Acting Supervisor threatened to remove him from the agency

because of insubordination for not following a direct order to follow

him to the MDO office.

3. The Acting Supervisor gave him an official discussion for

unsatisfactory work performance.

4. The Acting Supervisor gave him an official discussion for failure

to pay full time and attention to duties.

The agency dismissed all four allegations for failure to state a claim.

On appeal, appellant argues that the matters raised in his formal

complaint are a "chain of discriminatory actions" that are "sufficiently

patterned and pervasive." Appellant also argues that the record reflects

that the agency continues to harass him. In response, the agency argues

that appellant's complaint was properly dismissed for the reasons set

forth in its final decision.

EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal

of a complaint which fails to state a claim within the meaning of

29 C.F.R. �1614.103. In order to establish standing initially under

29 C.F.R. �1614.103, a complainant must be either an employee or an

applicant for employment of the agency against which the allegations of

discrimination are raised. In addition, the allegations must concern an

employment policy or practice which affects the individual in his capacity

as an employee or applicant for employment. 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; �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 his formal complaint, appellant alleged that the matters addressed

in allegations 1 - 4 were part of a pattern of harassment. On appeal,

moreover, appellant reiterates that his complaint addresses incidents

of harassment. 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 an analogous theme unites the

matters complained of. Meaney v. Department of the Treasury, EEOC Request

No. 05940169 (November 3, 1994). By alleging a pattern of harassment,

appellant has stated a cognizable claim under the EEOC regulations.

See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).

Accordingly, the agency decision to dismiss allegations 1 - 4 for failure

to state a claim was improper and is REVERSED. Allegations 1 - 4 are

REMANDED to the agency for further processing in accordance with the

ORDER below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

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

that it has received the remanded allegations 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 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:

November 5, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations